The Federal Court has dismissed Channel Nine’s action against IceTV, the provider of a subscription based electronic program guide (EPG), for infringement of copyright in Nine’s program guide.
The Federal Court decided that:
- Channel Nine held copyright in its weekly schedule,
- IceTV did not reproduce a substantial part of Nine’s weekly schedule and therefore did not infringe copyright.
Nine and IceTV program guides
Nine prepares schedules of its programs which include information such as program descriptions, ratings and captions. Nine records this information in various formats. One of the formats is the weekly schedule.
Nine provides its weekly schedule to third party aggregators who combine it with information from other broadcasters. The aggregators then provide the combined free-to-air TV guide to third party clients.
IceTV’s EPG contains details of free-to-air television programs scheduled to be broadcast, including dates, times and program descriptions. IceTV provides its EPG to subscribers for a regular fee.
Copyright in program guides
The court found that Nine’s weekly schedule was protected by copyright as a compilation.
Nine exercised skill and labour in selecting and ordering programs for broadcast and presenting or arranging this information in a detailed spreadsheet.
IceTV accepted that the weekly schedule is protected by copyright.
The guides prepared by the aggregators attracted a separate copyright to the copyright in Nine’s weekly schedule.
What is not protected by copyright?
Nine also claimed copyright in individual components of Nine’s weekly schedule, including a daily compilation of program time and title information.
The court rejected this and said the components do not amount to separate compilations.
The fact that the ultimate customer may use part of a compilation did not change the nature of the work protected by copyright. It was also relevant that Nine provided the weekly schedule, and not the separate components, to the aggregators.
Did IceTV infringe Nine’s copyright?
Nine claimed IceTV infringed Nine’s copyright by reproducing Nine’s weekly schedule, communicating the weekly schedule to the public and authorising the reproduction of Nine’s copyright by IceTV’s users.
A key issue was whether IceTV reproduced a substantial part of Nine’s weekly schedule.
How IceTV prepared its EPG was important in deciding whether IceTV had reproduced a substantial part. The court found that IceTV did not appropriate Nine’s skill and labour in the weekly schedule or the skill and labour used in compiling the aggregated guides. IceTV used its own resources and efforts to prepare its EPG:
- IceTV created its own TV guide templates by watching the free to air broadcasts for three weeks to create a seven day schedule. IceTV checked this information against publicly available guides
- IceTV used proprietary software to ‘predict’ programming based on previous programming
- IceTV then checked this information against the program information in published guides. If there was any discrepancy, IceTV checked other guides and used its own database or, if the information was not in its database, updated its database, to update its EPG, and
- IceTV created its own content for its EPG.
The court concluded that IceTV used its own skill and labour to produce its EPG and did not take the skill and labour attributable to Nine’s compilation.
The court also looked at a number of other factors which are relevant to determining whether a substantial part has been reproduced.
These factors include:
- the format and presentation of IceTV’s EPG and Nine’s weekly schedule was not similar,
- IceTV did not copy the whole of the information in Nine’s weekly schedule – IceTV copied only a small amount to check and update IceTV’s EPG.
Given this, the court decided that IceTV did not reproduce a substantial part of Nine’s weekly schedule. This also meant Nine’s other allegations of copyright infringement fell away.
What does it mean?
There are a number of aspects which should be kept in mind for compiling and protecting databases. These include:
- individual components of a compilation may not be protected as a separate compilation,
- how a person prepares a compilation and their use of existing compilations is critical in determining whether there is infringement. An important factor is whether the person appropriated the copyright owner’s skill and labour in the copyright work.
This article was written by Kristin Stammer, Partner, and Orana Swan, Senior Associate, Sydney.
More information
For information regarding possible implications for your business, contact