Case review by Margaret Ryan
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The High Court has recently handed down a very significant case in relation to the protection of databases - IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14 (22 April 2009).
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Nine claimed copyright in its Weekly Schedules of television programs and in its database of television program listings. IceTV produced the IceTV Guide, which provided a listing of television programs with its own synopses.
IceTV started with someone watching three weeks of TV to get the basic structure of a TV guide. From this predictions were made for what would be shown the next week and then these predictions would be compared with Nine's actual guide and corrections made.
Thus IceTV only took slivers of information from each week's TV listing.
The High Court held that there was no infringement of copyright of Nine's Weekly Schedules or database of TV listings.
The High Court rejected the reasoning that "what is worth copying is worth protecting" and the reasoning that IceTV had "appropriated" the skill and labour of Nine. It re-emphasised the distinction between facts (which are not protected) and the form of expression (which copyright protects).
Gummow, Hayne and Heydon JJ noted the balance between two competing public interests - one, the encouragement of copyright works and the second, the maintenance of a robust public domain in which further works are produced. In this case the latter public interest prevailed.
French CJ, Crennan and Kiefel JJ found that the titles of programs (not originated by Nine) together with the time of viewing and a chronological order was not sufficiently original for their taking to be an infringement. They criticised the earlier English case of Independent Television Publications Ltd v Time Out Ltd [1984] FSR 64 - where an independent TV guide had been found to infringe the Channel's TV guide - as focussing on the information itself rather than the particular form in which it is expressed.
This could mean that many databases which comprise all of the facts in a particular universe arranged in alphabetical, chronological or other obvious order may have little or no legal protection.
Gummow, Hayne and Heydon JJ, on the other hand, distinguished the Time Out case on the basis that there had been wholesale copying of dates, titles and times in the English case. This was not done by IceTV in this case. This view gives hope that wholesale copying of a database may still infringe in some circumstances.
Gummow, Hayne and Heydon JJ did comment on protection of databases generally. They noted that, unlike Australia, there was special database protection in the EU which protects an investor's investment in the database. They also criticised the way the case had been presented because the author(s) of the Nine database had not been identified. Their Honours considered that there needed to be evidence of the structure and manner of operation of the database and how it came to be assembled the way it was and who decided that information should be assembled in this way.
It seems that their Honours would have found that no copyright subsisted in the database because of the lack of an identified author except for a concession by IceTV that copyright had subsisted.
The case casts doubt on the earlier decision of Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd (2002) 119 FCR 491 where copyright was held to subsist in the White Pages and Yellow Pages and was infringed by wholesale copying.
The case substantially reduces the protection believed to have been given to databases in Australia.
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