Australia: High Court Decision Thaws Copyright Protection For Data Compilations

Article by Marie Wong and Marianne Saba

In a landmark copyright case,¹ 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 expression of information and not the information itself.

Background facts

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 for determination 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.

The High Court decision

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.

Whilst previous Full Federal Court authority in Desktop Marketing² 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), here, 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 than 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 allude 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 expression and arrangement of information, not the information itself.

Implications for copyright and database creators and users

The impact of the decision is to potentially lessen 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.

However, whilst the decision 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.

Footnotes

1 IceTV Pty Ltd v Nine Network Australia Pty Ltd [2009] HCA 14 (22 April 2009)

2 Desktop Marketing Systems Pty Ltd v Telstra Corporation (2002) 119 FCR 491 (Desktop Marketing)

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