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.
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.”