The supreme court of Australia has found for the online TV media guide IceTV, in their long running copyright dispute with Australian TV broadcaster, the Nine Network. Channel 9 claimed that IceTV infringed copyright of the weekly TV guide which Nine produce for distribution via licensed parties such as newspapers.
IceTV’s position was that their guide was an an original work, due to the method of production of their database guide:
- An IceTV employee watched TV for three weeks in August 2004, noting TV programming characteristics such as the program, date, and time started. These details were entered into a database.
- After this initial “bootstrapping” exercise, the IceTV guide database was tweaked on a regular basis by comparison with the TV Guide of Nine. Where title and timing discrepancies occurred, the IceTV guide was altered to suit.
It was on this second method of production that Nine’s claim of infringement hinged. Their claim was that using the title and timing information constituted a substantial infringement.
Nine’s claim was that IceTV’s method of compiling their TV guide reproduced a substantial part of Nine’s weekly guide, and on appeal, the Federal Court earlier found:
“Ice took, via the Aggregated Guides, precisely the pieces of information that reflected the exercise of skill and labour by Nine in determining the program for a particular day or other period … Ice’s use of material derived from the time and title information … appropriated the most creative elements of the skill and labour utilised by Nine in creating the Weekly Schedules.”
By framing the interpretation of the term “substantial” in terms of the “exercise of skill and labour”, the court found that IceTV had indeed reproduced a substantial part of the Nine Weekly Schedule. The High Court, however, disagreed, basing its interpretation of “substantial” to be largely dependent on “originality”.
However, the expression of the time and title information, in respect of each programme, is not a form of expression which requires particular mental effort or exertion. The way in which the information can be conveyed is very limited. Expressing a title of a programme to be broadcast merely requires knowledge of the title, generally bestowed by the producer of the programme rather than by a broadcaster of it. Expressing the time at which a programme is broadcast, for public consumption, can only practically be done in words or figures relating to a 12 or 24-hour time cycle for a day. The authors of the Weekly Schedule (or the Nine Database) had little, if any, choice in the particular form of expression adopted, as that expression was essentially dictated by the nature of the information. That expression lacks the requisite originality (in the sense explained) for the part to constitute a substantial part.
On the question of whether structural relationships such as the order of programming, the court found:
Counsel for Nine sought to place importance upon the reproduction not only of time and title information in respect of each programme, but also of the chronological arrangement of the time and title information for various programmes. Whether a selection or arrangement of elements constitutes a substantial part of a work depends on the degree of originality of that selection or arrangement. In this case, a chronological arrangement of times at which programmes will be broadcast is obvious and prosaic, and plainly lacks the requisite originality.
The court found that that the time and title information in the IceGuide was not a reproduction of a substantial part of Nine’s weekly schedule.
Today, computer based databases are the primary repository of knowledge. Almost every website, from Google to your phone directory, is powered by a database. The current Web 2.0 generation of information sources embrace the reuse (or mash-up) of published information from a multitude of sources over the web.
Before this decision in IceTv v Nine, The degree to which the database producer or owner has a right over the constituent information within the database has been uncertain. This decision appears to clarify the position somewhat:
“Copyright does not protect facts or information …That facts are not protected is a crucial part of the balancing of competing policy considerations in copyright legislation. “
This decision favours third parties using basic factual information from published databases (and websites in general).