NINE NETWORK V ICE TV - DOES COPYRIGHT PROTECT YOUR COMPILATION?

JONATHAN TEH SOLICITOR

Introduction

You have invested time and effort into collecting and arranging your business information, and it has become an important business asset.  Will copyright in your compilation prevent a competitor from gathering the same information?

In a recent Federal Court case,[1] IceTV Pty Ltd (“IceTV”) provided its subscribers with the “IceGuide”, an online programming guide with listings for all TV channels.  Nine Network Australia Pty Ltd (“Nine”) failed to prove that IceTV had reproduced a substantial part of Nine’s weekly TV schedules by providing the IceGuide.

This case serves as a reminder that copyright protects the effort of compiling and arranging facts, but does not protect the underlying facts or ideas.  Any person can produce their own compilation of the same facts by collecting public information, as long as they do not copy from your compilation.

What was Nine’s copyright work?

Nine spent considerable time developing its weekly TV schedules.  It selected, arranged and broadcast its shows to maximise viewers.  Nine’s weekly TV schedules contained program times, program titles, episode titles and synopses (ie program descriptions).

Nine’s weekly TV schedules were carefully guarded, and were distributed only to affiliate stations and TV Guide Publishers.  In turn, the TV Guide Publishers aggregated program listings from all stations to produce a daily TV guide.

The court agreed that Nine’s weekly TV schedules were copyright works under the  Copyright Act 1968 (Cth) ss 10(1), 32 because Nine had expended skill and labour to:

·                          collect the program details (“the facts”) to include in the weekly TV schedule (“the compilation”); and

·                          select, arrange and present the programs in the form of the weekly TV schedule.

However, copyright in a collection or arrangement of facts does not prevent a person from using their own skill and labour to independently collect the same facts — copyright does not protect the underlying facts.  This important principle has been applied to directories, maps and other compilations which, if independently produced, would result in a similar but non-infringing work.

In addition, copyright only applies to the copyright work as a whole.  For the weekly TV schedules, copyright did not attach to an individual fact (eg a program title), or a subset of facts (eg a day in the weekly schedule), or even a subset of columns (eg program times and titles).

Did IceTV copy a substantial part of Nine’s weekly TV schedules?

Nine accused IceTV of infringing copyright in Nine’s weekly TV schedules because the IceGuide incorporated program times and titles for Nine’s shows.  In order to prove copyright infringement, Nine needed to show that IceTV had reproduced a substantial part of Nine’s weekly TV schedule as a whole.

The difficulty with Nine’s claim was that IceTV did not have access to Nine’s weekly TV schedules.  Further, the court found that IceTV did not refer to the daily TV guides from the TV Guide Publishers when it initially produced the IceGuide.

Instead, IceTV engaged staff to watch “torturous” amounts of TV to record the program titles for each timeslot, without reference to any other publications.  The details recorded were public facts not protected by copyright.  IceTV then “predicted” the shows for subsequent weeks based on past programming behaviour and industry knowledge.

Further, IceTV prepared its own program synopses, and then presented its compilation as an electronic TV guide.  The form of presentation (in a daily format with synopses) did not infringe the arrangement and form of Nine’s weekly TV schedule.

Nine also alleged that IceTV had copied the weekly TV schedules because IceTV had “checked” its forecasted guide against the daily TV guides produced by TV Guide Publishers.  The court concluded that the daily TV guides were a separate compilation, and therefore it needed to be the TV Guide Publishers, not Nine, who alleged copyright infringement against IceTV.

In any case, when IceTV updated its compilation by referring to the daily TV guides, it had only used a “sliver” (a minimal slice) of information as was necessary to update those parts of the IceGuide.  The court concluded that these slivers of program time and titles (without all the synopses, program ratings and other details) were not quantitatively and qualitatively important compared to the synopses for each program in the daily TV guides nor the weekly TV schedule. 

On this basis, IceTV had not reproduced a substantial part of Nine’s weekly TV schedules, and had not infringed copyright.

Conclusion

The Nine v IceTV case illustrates the difference between copyright protection of a compilation, and the underlying public facts.

If you need to protect your compilations of information, we recommend you review your intellectual property, confidentiality and restraint of trade arrangements to ensure that the information is adequately protected.