Copyright Update April 2009

In this edition of the Copyright Update we examine the following:

High Court copyright decision – IceTV
Online reporting of sports news
File sharing website – infringement

High Court takes EPG off Ice

The High Court recently decided¹ that IceTV, the provider of an electronic program guide (EPG), did not infringe Nine’s copyright in its TV program guide (IceTV Pty Ltd v Nine Network Australia Pty Limited [2009] HCA 14).

The High Court overturned the Full Federal Court’s decision and found IceTV, in taking program time and title information, had not taken a substantial part of Nine’s Weekly Schedules.

The High Court favoured the primary judge’s approach which found the skill and labour in making the programming decisions was irrelevant as it was not directed to the originality of form of expression of the program time and title information.

The High Court delivered two judgments:

• Chief Justice French and Justices Crennan and Kiefel decided that in taking Nine’s program title and time information, IceTV had not taken a substantial part of Nine’s Weekly Schedule. The quality of this information was not sufficiently original having regard to the extent of the labour and skill involved in the form of expression of this information. While the quality of the material copied was of critical importance, its commercial value was not relevant in assessing substantiality. The way the program titles and times could be conveyed was limited, requiring little mental effort or exertion and was essentially dictated by the nature of the information.
• Justices Gummow, Hayne and Haydon decided that in considering whether a substantial part was taken, you needed to look at the skill and labour that went into the form in which the copyright work was expressed – the presentation of the program and title information. On this basis, IceTV’s use of this information was not considered a substantial part in the requisite qualitative sense. The Copyright Act 1968 (Cth) (Copyright Act) does not protect all misappropriation of skill and labour.

Although this decision is important in clarifying copyright protection in Australia, the High Court did not consider

1. whether, or to what extent, copyright subsisted in Nine’s Weekly Schedules. IceTV conceded copyright existed in the schedules, or
2. the important issue of 'indirect copying'.

On that, you will have to stayed tuned…

Online reporting of sports news

The Senate is currently conducting an inquiry into the reporting of sports news in the digital environment.

A number of sporting bodies have made submissions seeking amendments to the Copyright Act to restrict use of photographs and audio-visual content online. For example, by limiting the fair dealing defence for reporting the news.

Other submissions called for specific limits on the use of sporting clips online and the introduction of a new category of copyright in the performance of sport.

The Senate Committee is due to report by 14 May 2009.

Swoop on Pirates

A Swedish court found four people behind The Pirate Bay website guilty of contributory copyright infringement on 17 April 2009. The individuals were sentenced to a year in prison and ordered to pay US$3.6 million to a number of movie and music companies including Sony Music, Warner Bros and Twentieth Century Fox.

The Pirate Bay is a file sharing website which indexes and tracks BitTorrent files. The Pirate Bay unsuccessfully argued its website only contains an index of torrent files and the infringing copies were not located on its servers.

The Pirate Bay has appealed the decision.

In Australia, a copyright infringement action has been commenced against iiNet in respect of pirated movies and TV programs downloaded by its users.

This article was written by Orana Swan, Senior Associate and Kristin Stammer, Partner, Sydney.

Endnotes

1. For further background on the IceTV decision, please refer to our previous article on the Federal Court decision.

More information

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