Now the long wait
The High Court appeal in Nine vs IceTV concluded yesterday. Mr Bannon SC completed Nine’s submission, which was focussed largely on showing that Nine’s weekly schedule does fall within the Copyright Act’s definition of a compilation. The judges continued their questions about who the authors are, and when their authorial work started and ended. They were also interested to know exactly which copyright work Nine claimed to own. Gummow J said that the statement of claim talks about program guides which are ‘up there’, with a gesture to the heavens.
A compilation requires selection and arrangement of elements and the process needs to require skill. Mr Bannon had said the day before, that the process of selection started months earlier, when Nine’s executives visited the producers in Hollywood and so on. On the second day, when Justice Hayne pointed out that the selection process must be made from existing stock, Mr Bannon said “I am beating a full-scale retreat from Hollywood – and that it was “via Damascus”.
The Judges continued questioning whether Nine’s activities were a part of the selection process for making the compilation, or a series of commercial decisions for optimising their broadcasting business. Mr Bannon accepted Justice Hayne’s suggestion that “a root proposition you will have to make is that a decision about a business decision, once recorded in a material form, is a compilation”.
Justice Crennan posed a number of hypothetical scenarios, such as: if a competitor shows the same show as Nine at the same time, would they breach Nine’s copyright by putting that in their guide?
Mr Catterns QC then spoke for Telstra. He argued that the policy that compilation copyright protects commercial considerations has long been decided, and that is a question for the legislature, not the courts. Once again, Justice Crennan questioned whether making commercial decisions is an act of compilation. She also explored the question of originality “You can’t say a trademark is original just because you spent $10 million coming up with it”.
IceTV’s Mr Ireland QC then argued that the people who made the programming decisions were not the authors of the Nine guide, the author is an un-named person who prints out the selection of fields from their large database to create the guide which is sent to the aggregators.
To me, the most striking feature of this appeal was that the goalposts seem to have shifted dramatically since the case began. Initially, there was little discussion about the nature of Nine’s copyright work, it was all about whether IceTV copied it and, if so, whether it was a substantial part. The High Court seemed primarily interested in whether Nine’s guide is actually a copyright work within the definitions of the Act, and if so how much protection it should get.
There was also the question of whether IceTV’s activities cause Nine any harm. Nine were asked “what are the damages if somebody else informs the public about your programs? Nine said that they did not get paid for their schedule by the aggregators, but they had control over what they did with it. The relevance of this is discussed in Benedict Atkinson and Professor Brian Fitzgerald’s recent publication described in my last blog entry.
As Atkinson and Fitzgerald say:
Ice TV v Nine Network is a seminal copyright case because of its potential to restrict information flow. Access to information is a human right, and while it might be thought that the public is not much harmed if prevented from extracting data from unexpressive information compilations, over time the oppressive exercise of proprietary rights in information could radically undermine our freedom to inform ourselves without cost or restriction.