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The High Court has ruled that the electronic program guide created by IceTV does not infringe Nine Networks’ copyright.

The full judgment of French CJ,Gummow, Hayne, Heydon, Crennan and Kiefel JJ (73 pages) is available here.

In summary, the court found that, in terms of the Copyright Act,  IceTV did not copy a “substantial” part of Nine’s weekly schedule.

The judgment notes that IceTV did not copy any of the broadcasters’ program synopses, and that:

IceTV’s synopses had a different commercial purpose from that of Nine, as evidenced by the use of humour or criticism.  For example, the IceGuide synopsis for the Nine programme The Footy Show (AFL) on 28 September 2006 read
“From the Rod Laver Arena comes this extra long torture session.  Apologies for not bringing you the ‘entertainment’ line up, it’s not through lack of research.  Unfortunately, the only way to have truly known was to be watching The Footy Show last week and frankly, not for love or money will the IceMan do that.  So, those of you who enjoy the ‘humour’ and baffling ego inflation.  Enjoy.”

Having found that  IceTV did not copy a substantial part, it was not necessary for the Court to consider the issue of “indirect copying” which was one of the main reasons previously given for the contrary finding in the Federal Court of Appeal. I discuss that subject in an earlier post.

I was pleased to see the Court took into account the balance between the public interest issues of this case.  They said:
“The Full Court approached the issue of substantiality at too high a level of abstraction, and in doing so tipped the balance too far against the interest of viewers of digital free to air television in the dissemination by means of new technology of programme listings.  The Full Court did so by treating the issue of substantiality as dominated by an “interest” in the protection of Nine against perceived competition by Ice.”

The history of this litigation is explored further in this category of our blog. It has its roots with my idea, back in 1988, that an electronic program guide could be used to overcome the difficulty people were then having setting their VCRs to record the correct program. When I approached the TV networks to buy their data, they said they would not sell it for that use. When I came up with the idea of creating an EPG independently, without breaching copyright, TV industry representatives said “we’ll sue you”.

The rest is history.

Peter Vogel (Shareholder but no longer employed by IceTV)