The High Court today granted special leave to IceTV to appeal the finding that they had infringed Nine’s copyright in their program guide.
IceTV’s application for leave cited 10 ways in which the Full Court had erred. To me the most interesting points will be concerning indirect copying. Quoting IceTV’s application:
6. The Full Court erred in characterising the case as one of “indirect copying.”
7. The Full Court erred in finding that the requisite causal consideration existed between the Weekly Schedules and the IceGuide produced by the first applicant.
A lot rides on this point, not only for IceTV but for many others who compile information of various types. For example, as the ruling presently stands, it is open for say asupermarket to claim that the government’s “Grocerywatch” breaches their copyright by indirectly copying their price list. See my earlier post for more on the question of indirect copying.
If the High Court confirms that Nine’s copyright is breached no matter how the guide is reproduced (which seemed to be what the judgment said), then even watching TV and writing down what’s on would be a copyright breach.
It’s interesting that IceTV was granted leave to appeal, while Desktop Marketing was refused leaveto appeal the finding in favour of Telstra in an earlier landmark case. Perhaps the High Court realises what a can of worms the Full Court judgment against IceTV has opened up.