TV Listings Copyright :: ICE TV Decision

A week ago the Federal Court of Australia found against Nine Networks in a copyright case it brought against ICE TV. Nine asserted that ICE TV had infringed the copyright of their TV Schedule in the production and communication of their ICE Guide.

The case is important as it has determined, within the Australian jurisdiction, that copyright for a compilation - such as a weekly TV schedule must be considered as a whole and that there is no separate copyright for components, such as the time and title information within that schedule.

“Nine cannot claim copyright in the time and title information for a single day or week as if that information were itself a separate compilation.” - Bennett J

It also provides an interesting window into the world of Australian TV scheduling and listings production. For the details you’ll have to read the full decision.

BTW: Talking of TV schedules I see that Fiona Rae is providing a ‘wheat from chaft’ look ahead for the week on NZ screens. Who would have known that C4 was screening Skins otherwise?

Here’s my 5 minute summary of the case

Facts

ICE TV provides an digital EPG service for consumers in Australia.
ICE have created their own system, comprising of a database and prediction process.
The basis of their system is data that was collected by watching television and compiled into the initial channel templates.
Part of ICE TV’s process is checking their predictions of the TV schedules against the guides published by third parties.
These aggregated listings are created by a small number of companies, including Pagemasters.
(BTW: Pagemasters is used by NZ publishers both for TV listings and more recently for subcontracted sub-editing).
The aggregators are provided with the weekly schedules by the TV Networks, including Nine.

Bennett J identified the following issues for determination.

What is the identity of the Nine work(s) in which copyright subsists?

“Nine can claim copyright in the Weekly Schedule. It cannot claim copyright in the components of the Weekly Schedule as if they are separate compilations. They are not.”

What is the effect of aggregation on the copyright subsisting in the Nine work(s)?

“The process of aggregation does not “destroy” Nine’s copyright in the Weekly Schedule. The Weekly Schedule remains a copyright work but it is separate and distinct from the Aggregated Guides, which are themselves original literary works and copyright protected compilations.”

Did Ice copy the Nine work(s) when it created the first templates for the IceGuide?

“It is at law open to a person to ascertain the facts recorded in a compilation by independent inquiry and to compile his or her own compilation containing the results of that inquiry. So long as the second compiler does not copy the first compilation, there would be no infringement of any copyright in that compilation ‘any more than the existence of copyright in a photograph of a scene signifies that there is copyright in the scene itself, which, therefore, a later photographer is not at liberty to photograph from the same viewpoint’”

Do Ice’s present activities infringe Nine’s copyright?

“Different content and modes of expression and arrangement may be utilised for a television schedule. The Weekly Schedule, the Aggregated Guides and the IceGuide each differ in their manner of selection, expression and arrangement. It follows that form and content are each relevant to the question of infringement.

Ice does not engage in broadcasting. It does not take the skill and labour of placing programs in an order that appeals to viewers in that Ice plays no part in the placement of programs. It does not take the format of the Weekly Schedule. It does not take synopses from the Weekly Schedule. It conducts its own research and drafts its own synopses.

Ice does take slivers of time and title information each day from the Aggregated Guides. For the reasons I have set out in detail, Ice does not reproduce a substantial part of the Weekly Schedule in so doing.

It follows that Ice has not infringed Nine’s copyright in the course of making and updating the IceGuide.”

For other takes:
William Patry provides comment.
ICE TV’s reaction
Sydney Morning Herald Report