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How to copyright facts

May 14th, 2008

In her judgment in August 2007, dismissing the copyright claim by Nine Networks against IceTV, Justice Bennett said “The underlying principle is that the law of copyright does not give an exclusive right to state or describe particular facts.”

The recent appeal decision overturning Justice Bennett’s ruling appears to me to be confirming that it is now possible, in many situations, to gain protection of mere facts.

Here’s my take on what happened in the Nine/IceTV situation (and I am neither a lawyer nor spokesman for IceTV).

Understanding that a published TV schedule is protected by copyright, I built a business around the idea of independently creating a TV guide by original research and creativity. See this entry for more details. The research involved watching TV and writing down what was showing when. The resulting rough schedule was then fine tuned from time to time using other information sources.

In 2002 I was delighted to read the judgment in Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd which said: It is at law, if not in practice, open to a person to ascertain all the facts recorded in a Telstra directory by independent inquiry and to compile their own directory containing the results. So long as the second compiler did not copy Telstra’s product, there would be no infringement of any copyright in the (identical) Telstra directory.

This seemed to confirm exactly the process IceTV would use. However the judges in the recent Nine appeal (incidentally the same three as in Desktop) ruled that although IceTV had no access to Nine’s original work, IceTV had indirectly copied Nine’s copyright schedule. They clearly identified IceTV’s use of information such as TV guide websites to which Nine licensed their information as the medium of indirect copying. They concluded: As we have explained, Ice, to the extent it reproduced time and title information from the Weekly Schedules, appropriated the skill and labour used by Nine to create the Weekly Schedules.

The implication of this seems to be that “indirect copying” has been defined as any activity which results in the “reproduction” of a copyright work. Had IceTV not looked at the published guides at all, and relied only on what could be learned by watching TV, the Court might still have found them guilty of indirect copying.

This casts a perverse new light on the Desktop dictum quoted above. It seems that “so long as the second compiler did not copy Telstra’s product” takes on a new meaning in light of the Nine judgment. The same three judges who seemed to have given me the thumbs up in 2002 for the process I was proposing to use, seem to now be saying that no matter what Desktop would have done, they could not reproduce Telstra’s phone listings without “appropriating their skill and labour”.

Suppose Desktop Marketing had actually gone door to door and asked everyone what their phone number is, even for just one suburb. Having published this list, Telstra could argue that they had indirectly copied their phone book through the medium of many informants. The court would likely find that were it not for their skill and labour expended in assigning households unique numbers, it would have been impossible for Desktop to create their directory. Following the precedent of Nine vs IceTV Desktop would have breached Telstra’s copyright.

Telstra could further argue that even individual phone numbers and the associated identity is their copyright property, and writing down a single name and number given to you by a friend, or printing your name and number on a business card, is a breach of their copyright.

I can also imagine situations where the owner of the original work does not publish it at all, but uses copyright law to regulate use of their information, which may be mere facts.

These developments in Australian law are a worrying move towards a new class of intellectual property rights that might be great for some businesses’ bottom line, but a threat to competition and the public interest generally.

I see IceTV are considering an appeal to the High Court. I also recall that Desktop was refused leave to appeal to the High Court.

I wish them luck.

Titanic sinks Iceberg

May 8th, 2008

The Nine Network today won their appeal against last year’s decision in favour of IceTV.

Three Federal Court judges ruled that IceTV did breach the Nine Network’s copyright in its weekly program guide.

The exact implication for IceTV will be decided when the matter is remitted to the primary Judge, Annabelle Bennett. However IceTV have been ordered to pay Nine’s costs which could run into millions. Nine are also seeking damages, although these will be hard to prove.

Judges Black, Lindgren and Sackville ruled that Judge Bennett had erred on several crucial points. The full judgment can be read here.

http://www.austlii.edu.au/au/cases/cth/FCAFC/2008/71.html

IceTV’s method of creating their EPG (electronic program guide) was described in detail in the judgment handed down by Justice Bennett in 2007 and can be summarised as follows.

A template guide was produced by watching TV for a couple of weeks and writing down what was on each channel in each timeslot. This template is then used to predict what would be on the following week, based on the fact that the majority of programming is consistent from week to week. IceTV staff create original synopses or program descriptions based on their own research and original writing. Where programming was not completely predictable, such as when a “special” was aired, or a season finished, IceTV staff make corrections to the predictions based on checks against a range of published sources.

Nine argued that the time and title information in their weekly schedule was itself a copyright work, even without the other information such as synopses and ratings. Justice Bennett did not accept this, arguing that the guide had to be considered as a whole, and on that basis the parts that IceTV copied were not substantial enough to constitute a breach of copyright. She also felt that the sources from which IceTV got their information, being published guides which included all the other networks’  schedules, were sufficiently removed from Nine’s source schedule as to fail the test of “causal connection” between the original work and the alleged infringing work.

The appeal judges disagreed with the primary judge on all these points. They decided that the creative skill that went into selecting which shows went to air at what time made the time and title section of the schedule very important. Also, the test of whether a “substantial” part of the work has been copied looks to the quality rather than the quantity of the material copied. They concluded that IceTV had “appropriated the skill and labour used by Nine to create the Weekly Schedules”.

A landmark case, Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd established that there is no obstacle to recreating a compilation by independent inquiries provided there is no copying of the first compilation. In IceTV’s case, the appeal court ruled that the process of checking against published sources and correcting the Ice guide as required amounted to using”Nine’s copyright work by indirectly copying time and title information from the Aggregated Guides”.

The definition of “copy” is clearly the seminal issue in this case. It is by no means a simple question, especially when the Court refers to IceTV’s actions as “indirectly copying”. An example of indirect copying is the case of LED Builders Pty Ltd V Eagle Homes Pty Ltd in which Eagle Homes was found to have breached LED Builder’s copyright in its house plans. In this case Eagle’s draftsmen were give oral instructions on how to modify their plans to make them very similar to LED Builders’ plans. Eagle argued, unsuccessfully, that they didn’t have access to the plans they were accused of copying.

In IceTV’s case, the appeal court has found that even though IceTV did not have access to Nine’s schedules, they indirectly copied them by modifying their own schedules using websites and other sources which were copies of Nine’s time and title compilations.

The court concluded “Ice used the time and title information reproduced in the Aggregated Guides as an important resource for producing IceGuide. In consequence Ice reproduced a substantial part of Nine’s copyright work. The required causal connection was present. This was a case of indirect copying of a substantial part of a copyright work.”

Stay tuned.