As reported elsewhere , the High Court last Tuesday granted IceTV special leave to appeal against the Full Court’s finding that it had infringed Nine’s copyright in its TV schedule. The transcript of the special leave hearing is now available and makes for interesting reading.
Gummow J gives some interesting clues as to how the Court may approach the appeal, noting in particular that the principles underlying the US decision in Feist, dealing with originality in compilations, may have some application to the issue of substantial part under Australian law. His Honour concludes by noting that:
we expect to have the assistance of counsel to deal with this matter thoroughly without any reticence in starting at the bottom, so to speak, and we expect counsel to be familiar with the academic writing in this field. They have already been referred, I think, to an article by Dr Deazley in  Intellectual Property Quarterly 121. There is also what may be a useful article by Professor Sterk in Michigan Law Review for 1996, Volume 94, pp 1197 called Rhetoric and Reality in Copyright Law. There is a lot of other material out there as well. I hope the arguments will be informed with all of that, at least in a suitable background.