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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.