Background

The case involved the alleged copyright infringement of Nine’s television program schedule by IceTV. IceTV produced an interactive programming guide called the “IceGuide” which could be bought by subscribers and would provide information about upcoming broadcasts on free-to-air television. Nine’s broadcasts were amongst those that IceTV included in its programming guide.

The basis of Nine’s argument before the Federal Court was that IceTV had used information from Nine’s “Weekly Schedule” to put in its programming guide. Nine would regularly supply information from the Weekly Schedule to third parties who would make an “Aggregated Guide” from material given to them by several free-to-air broadcasters. The Aggregated Guide would include information that had been created by Nine for its Weekly Schedule.

Nine alleged IceTV indirectly gathered information for its programming guide from the Aggregated Guide.

The Weekly Schedule was alleged by Nine to be an “original” literary work under the Copyright Act 1968 (Cth). Nine asserted that any reproduction of material that IceTV took from the Weekly Schedule or Aggregated Guide would be an infringement of the copyright Nine held as literary work.

IceTV accepted that there was copyright in the Weekly Schedule but denied that it had ever reproduced substantial parts of the Weekly Schedule. IceTV also disagreed that any information copied from the Aggregated Guide was a reproduction of the Weekly Schedule.

In the Federal Court, Nine’s claims were rejected by Justice Bennett at first instance. However, the Full Federal Court found that there was sufficient evidence that IceTV had infringed Nine’s copyright over the schedule information and overturned Bennett J’s decision.

The High Court Decision

The High Court unanimously overturned the Full Federal Court decision and allowed IceTV’s appeal. In their joint judgement, French CJ and Crennan and Kiefel JJ confirmed the general rule:

“Copyright does not protect facts or information. Copyright protects the particular form of expression of the information, namely the words, figures and symbols in which the pieces of information are expressed, and the selection and arrangement of that information … Copyright … does not confer a monopoly on facts or information because to do so would impede the reading public’s access to and use of facts and information.” [at 28]

The Court found that while the arrangement of the Weekly Schedule was an original source of information and creative material under copyright law, the time and title information listed within it lacked originality or creativity in its production. Even the effort required to arrange the material was held to be minimal. In another joint judgment, Gummow, Hayne and Heydon JJ found that the measures IceTV had in place to refine the material to their own commercial uses was relevant. These measures involved updating late program changes and writing synopses that the subscriber could review before watching a program.

Summary

The High Court’s decision sets out a clearer guideline for the use and dissemination of information under copyright law. The Court has confirmed that it is the organisation and preparation of information that provides the protection under copyright, not the mere production or distribution of that information.