Today I am in Canberra for the High Court appeal of Nine vs IceTV (see my previous posts below). This case has certainly gathered a head of steam. The importance of the outcome of this final appeal is reflected in the fact that leave was granted for Telstra to appear in support of Nine and to the Australian Digital Alliance in support of IceTV. Hence the cast of thousands at the bar table.
Telstra is understandably concerned. If this appeal goes against Nine, it could be a green light for others to use information from their phone book which until now has been protected by copyright laws (Telstra vs Desktop Marketing being the landmark case).
The Australian Digital Alliance is a public interest group which champions the right of access to information, as their website says:
Australia’s copyright laws are the chief means by which we as a society regulate the creation and distribution of knowledge. The effects of a misguided copyright regime would be dire and create enduring harm to our education system, our economy and our culture.
The day kicked off with IceTV’s silk John Ireland explaining how IceTV produces their guide and fielding questions from the bench. IceTV did not accept that copyright subsists in Nine’s weekly schedule. They said it is “Nine’s statement of its present intention as to what is going to be broadcast” when and once these facts are published they are a public resource which can be used as a basis for their research.
There was much discussion about the primary purpose of creating the schedule – is it mainly for meeting commerical objectives or for providing a TV guide for the public?
The judges also asked who the authors of the alleged copyright work are (a company cannot be an author, only people). After much discussion this point is still being argued.
Mr Ireland argued that this case is distinguished from “indirect copying” cases, such as where someone copies house plans by measuring up a house built from the plans. He said that in that case the process recreates the original work, whereas IceTV does not reproduce Nine’s schedule.
Mr Webb, appearing for the Australian Digital Alliance, submitted that the Full Court had lost sight of what was required to constitiute an original work of an author. He also argued that copyright law has always strived to protect the public interest in dissemination of information, and that the public interest must be balanced against the author’s interest. He suggested that Nine was attempting to control information long after it has lost its confidentiality.
Nine’s Mr Bannon was next. He described the process Nine used to create its weekly schedule and stressed that the process of deciding the broadcast schedule cannot be separated from the process of creating the copyright work, the weekly schedule.
The Judges asked many questions which seemed to be aimed at teasing out the distinction between making business decisions, aimed at maximising ratings, and publishing the schedule.
Justice Gummow, for example, asked “Is what you are seeking protection for the substantial business investment in building up the database?”.
There was much discussion about whether the authorship process included all the preparatory work. Justice Haydon said “The expression of those two columns [the time and title] is not the hard bit, thinking them up is the hard bit” and asked whether the work of negotiating purchase of programs is also part of the skill and effort of creating the schedule.
The case resumes tomorrow.Â Stay tuned.