The Latest Word on Copyright in Factual Compilations

The recent High Court decision in IceTV Pty Limited v Nine Network Australia Pty Ltd [2009] HCA 14 has represented a narrowing in the protection afforded by Australian copyright law to owners of factual compilations. Such compilations may include telephone directories, sporting guides, schedules of events and exhibitions, online databases of customer or subscriber information and, as in IceTV, television programme schedules.

The case involved the reproduction by IceTV of programme time and title information appearing in Nine's weekly schedules of programmes to be broadcast on its television channels. Those weekly schedules contained other information such as ratings and programme synopses.

IceTV reproduced Nine's time and title information in its online subscription based electronic television programme, the "IceGuide". Subscribers can use the IceGuide to record programmes they are not able to watch at the time they are aired. In order to prepare the IceGuide, IceTV conducted its own independent research and prediction, but to the extent that it could not predict time and title information it sourced that information from Nine's weekly schedules. Nine argued that in doing so, IceTV had reproduced a substantial part of the weekly schedules which amounted to infringement of Nine's copyright in that work.

The Court held unanimously that IceTV did not reproduce a substantial part of the weekly schedules. The Court re-affirmed the entrenched principle that in assessing substantiality it is important to consider the quality rather than the quantity of what has been taken, which in turn involves an assessment of the originality of the material that has been taken. The Court was critical of the lower courts' focus on whether IceTV had misappropriated the skill and labour Nine had invested in preparing its weekly schedules. Instead, the Court focused on the work itself, in particular the originality of the way in which the time and title information reproduced by IceTV had been expressed by Nine. Three of the judges held that the expression of that information lacked sufficient mental effort to satisfy the originality test. The other three judges focused on a comparison between what had been taken and the work as a whole and found that the originality of Nine's weekly schedules was not in the provision of time and title information but to be found in the selection and presentation of the work as a whole, the latter of which had not been reproduced by IceTV.

Although the case focused on copyright infringement, the court's comments on subsistence of copyright in factual compilations reaffirms the principle that facts will not be protected by Australian copyright law. Further, compilations of facts will only be protected where those facts have been expressed in an original way. This may be difficult, particularly where there are limited ways in which the facts can be expressed (as in the case of telephone directories or lists of cultural or artistic events). Comments made by the Court in IceTV also emphasise the importance of being able to identify precisely both the compilation in which copyright is said to subsist and the people who have contributed to that compilation.

The scaling back of protection offered to organisations who value their factual compilations may prompt those organizations to lobby the Australian government for a database right similar to that which exists in the UK to protect the appropriation of labour and skill involved in collecting independent works and arranging them in systematic way such as a database. For organisations that wish to make use of existing compilations the IceTV case is good news. However, care should be taken in relying on this decision for all future reproductions of the facts contained in organisations' compilations as IceTV does not provide a complete answer to a number of relevant questions. Most importantly, while the court seemed to signal a shift more towards the US position on originality which requires some kind of creative spark, the court in IceTV left open the question of what level of creativity, if any, is required for a factual compilation to be sufficiently original for copyright purposes.

Amanda Andreazza is a Senior Associate at Allens Arthur Robinson.


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