22 April 2009
In a decision with important implications for compilations of information, such as databases, the High Court today held that an electronic program guide, which reproduced program titles and broadcast times from programming schedules created by TV networks did not infringe copyright (IceTV Pty Limited v Nine Network Australia Pty Limited  HCA 14).
How are the two guides produced?
Programmers at Channel Nine prepare the schedules a few weeks in advance. For each timeslot, they insert the following information: broadcast time; program and episode titles; the currency of the program (is it live? a repeat?); classification; and a synopsis. IceTV conceded that copyright subsisted in Channel Nine's schedules and consequently the question of subsistence was not argued
This is then sent to aggregators who put it with information from other TV channels to make up TV guides.
IceTV produced an electronic program guide that worked with any personal video recorder device or media centre that is connected to the internet. Users would access the guide and then select programs from it; this would then tell the recorder to record the programs. Ice TV's content manager sat in front of a TV for three weeks to get basic information about TV schedules. This could be done because certain aspects of the broadcast schedules remain constant - for example, Channel Nine's News is always at 6pm, followed by A Current Affair. The template would include that unchanging information. The variable information would be obtained from the TV guides produced by the aggregators. Importantly, IceTV only copied the time and title information. IceTV would draft its own synopses of the programs.
The critical issue was whether the reproduction of the titles and times was an infringement of Channel Nine's copyright in its schedule.
Why wasn't this infringement?
The High Court went back to one of the bases of copyright law: namely that copyright is to protect the expression of ideas, not the ideas themselves. While the skill and labour used to create the work are important when considering infringement, the focus must be directed to the originality of the particular form of expression.
Here, Channel Nine put together the titles of television programs and the times they would be shown. These are basic facts. There is no originality in the way these facts have been expressed as they were merely presented in chronological order.
Channel Nine established that skill and labour was used in making programming decisions, such as what program was to be broadcast in a particular time slot. However, this skill and labour was not directed to the particular form of the time and title information that IceTV reproduced. Consequently it had no bearing on whether the that information was original or a substantial part Channel Nine's copyright works.
Why is this important?
More and more information is captured and stored in databases and other compilations. This decision is important because it suggests that the courts might be retreating from the position held or assumed in previous cases, most notably Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd  FCAFC 112, which focused on the skill and labour used simply to create the compilation and the interests of the creator and copier.
Instead, the High Court has reasserted the importance of expression in copyright law, at least in the context of infringement. It has also suggested, without deciding, that some databases might not even meet the basic requirements for copyright protection, particularly that of authorship.