In the landmark copyright case of IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 254 ALR 386 (IceTV case), the High Court unanimously held that IceTV did not infringe copyright by reproducing individual items of time and title information from Nine Network’s weekly television schedules. The decision signals a shift away from the “sweat of the brow” protection previously afforded to data compilations in Australia, reinforcing that copyright protects the expression of information and not the information itself. This case will have particular implications for governments as users and creators of often large and commercially valuable compilations of factual information.

Background

IceTV was using time and title information from Nine Network’s weekly broadcasting schedules to assist in producing an electronic programme guide for use on digital televisions, known as the “IceGuide”. IceTV took independent steps to compile the initial information to be included in the IceGuide, but used Nine’s time and title information to cross-check its final guide for accuracy and, if necessary, amend the IceGuide.

For the purposes of the proceedings, IceTV accepted that copyright subsisted in Nine’s weekly broadcasting schedules. However, the question to be determined by the High Court was whether the time and title information that was reproduced in the IceGuide constituted a “substantial part” of these broadcasting schedules.

Judgment

The High Court undertook a qualitative assessment of the information reproduced. The High Court found that the time and title information taken by IceTV was not a “substantial part” of Nine’s original compilation as the part taken lacked the originality of expression required to constitute a substantial part.

Previous Full Federal Court authority in Desktop Marketing Systems Pty Ltd v Telstra Corporation (2002) 119 FCR 491 (Desktop Marketing) had suggested that copyright would subsist to protect the “sweat, skill and effort” in compiling information in a particular arrangement (in that case, telephone directories). In the IceTV case, the High Court rejected that there was any skill and labour directed at the particular form of expression of the part reproduced by IceTV. In this case, the arrangement of programme time and title information reproduced by IceTV could be arranged in no other way but chronologically. Therefore, any “skill and effort” that Nine had employed in creating its weekly broadcasting schedules was not in the time and title information taken by IceTV. Accordingly, IceTV did not infringe copyright.

Although the High Court did not directly overturn the principles found in Desktop Marketing, it did suggest that an emphasis on the mere “labour and expense” involved in compiling information may be an out of date consideration and that focus must be placed on originality in the form of expression. This reinforces trite principles that Australian copyright law only protects the expression and arrangement of information and not the information itself.

Implications for copyright and database creators and users

The decision potentially lessens the protection previously thought afforded to data compilations such as business directories, schedules and timetables. It appears that information in such data compilations may not be protected from reproduction merely because significant “sweat, skill and effort” had been employed in creating the database. Instead, consideration will need to be given as to whether any “creative spark” or “original thought” has been employed in the arrangement and expression of the particular compilation. This parallels the position in the US where copyright protection has not traditionally been afforded for mere “industrious collection”, but requires some element of “creativity” in the selection and arrangement of material.

These principles would seem to pose some difficulties in enforcing copyright protection for compilations of factual data which, by their nature, rarely involve creativity on the part of the copyright creator. This is particularly so for government compilations such as budget reports, statistics or demographical information. Some government compilations of data may therefore lack the level of copyright protection previously thought to exist. The case also has implications for governments as users of copyright, as uses previously made of third party compilations (such as financial information or survey data) may no longer constitute the taking or reproduction of a substantial part.

However, whilst the decision in the IceTV case might be hailed as an open door for copyright users to repackage database information, ultimately, whether such activity constitutes copyright infringement will require careful analysis of the type of database in issue, the processes involved in compiling and arranging it and the precise “taking” in question. Accordingly, whether particular data or information in a compilation or schedule may be freely used and reproduced without infringement will nevertheless remain to be assessed on its own facts.