Channel Nine’s copyright case against IceTV Goes to water
IceTV Pty Ltd v Nine Network Australia Pty Ltd  HCA 14
In a landmark decision on Australian copyright law, the High Court recently overturned a decision of the Full Federal Court and unanimously held that IceTV had not infringed the Nine Network’s copyright in its television schedules.
Facts of the case
At the centre of the dispute was the IceGuide, an electronic program guide (“EPG”) first produced by IceTV in 2005. The IceGuide is a subscription-based service which provides subscribers with a weekly or daily television guide for free-to-air digital television. IceTV manually produced the first version of its IceGuide by observing (over a 3-week period) the time and day on which free-to-air television programs were broadcast, and using those observations to predict what a particular week’s television program schedule was likely to be. Each week’s IceGuide was created using the previous week’s guide as a template to predict which programs would be shown on which channel and at what time. IceTV obtained episode information and program synopses from sources such as the official websites for various television programs. As the final step in the creation of the IceGuide, IceTV staff checked the IceGuide against the television guides published in newspapers, magazines or online (“the Published Televison Guides”) to determine the accuracy of the IceGuide and to correct any last-minute changes in programming.
It was this final step in the creation of the IceGuide that the Nine Network (“Nine”) alleged was an infringement of its copyright. Nine asserted that it owned copyright in its own weekly televison programming schedules (“the Weekly Schedules”), and that IceTV had infringed its copyright in those Weekly Schedules by reproducing a substantial part of them, namely the time and title information for the shows that were scheduled to be broadcast, without authorisation from Nine.
At first instance, Justice Bennett of the Federal Court held that IceTV had not infringed Nine’s copyright as it had not reproduced a substantial part of the Weekly Schedules. The Full Federal Court overturned that decision in May 2008, holding that a substantial part of Nine’s Weekly Schedules had been reproduced by IceTV without Nine’s authorisation.
The High Court’s decision (handed down in two separate judgments), focussed on the question of what Australian copyright law is designed to protect. The Court emphasised that copyright law is not designed to protect facts, but rather to protect the way in which those facts are expressed. In this case the “facts” were the pieces of program time and title information obtained by IceTV from the published television guides. The “expression” of those facts was the arrangement of that information into Nine’s Weekly Schedules, in chronological order.
The High Court did not have to decide whether or not the Weekly Schedules themselves were actually protected by copyright law, as IceTV had conceded that copyright subsisted in the Weekly Schedules and that Nine owned that copyright. The High Court was asked to consider whether IceTV’s conduct in taking time and title information for selected programs (including Channel Nine programs) from the Published Television Guides in order to improve the accuracy of the IceGuide, involved taking a substantial part of Nine’s Weekly Schedules. If a substantial part had not been taken, there could be no copyright infringement. The High Court unanimously held that IceTV had not infringed Nine’s copyright. The Court delivered its reasons in two separate judgments.
French CJ, Crennan and Kiefel JJ held that the expression of the time and title information taken by IceTV from Nine’s Weekly Schedules was not sufficiently original so as to constitute a substantial part of Nine’s copyright. This was because their Honours did not consider that there was any substantial originality in the arrangement of the time and title information in chronological order, in Nine’s Weekly Schedules. To the extent that any skill and labour had been invested by Nine’s employees in arranging the time and title information in the Weekly Schedules, that skill and labour was considered to be minimal in relation to expressing that information.
Gummow, Hayne and Heydon JJ held that although IceTV had appropriated Nine’s skill and labour in the Weekly Schedules, it did not mean that IceTV had infringed Nine’s copyright. Their Honours said that the relevant question, for copyright purposes, was whether the material that had been taken was sufficiently original so as to attract copyright protection. In their Honours’ view, the originality in the Weekly Schedules lay in the selection and presentation of the Schedules as a whole (including time and title information, synopses and other additional programme information), not in the expression of the time and title information itself.