Aussie copyright decision increases scope for fair (dinkum) dealing

In a case that will possibly influence New Zealand law, the High Court of Australia (their highest court) last week handed down a major decision that makes it harder for companies to claim copyright over compilations and databases such as television schedule listings.

After a hearing involving no less than six QC’s (or Senior Counsels as they are now known in New Zealand and most Australian states), the High Court unanimously ruled in IceTV Pty Limited v Nine Network Australia Pty Limited that IceTV, which provides electronic programme guides, did not infringe the Nine Network’s copyright by partially reproducing its television schedule listings.

TV networks have long regarded their schedule listings as copyright material. In fact, it is common for networks to generate revenue by selling the rights to publish the listings in newspapers, magazines, etc, as seen here. As the network owns copyright in their TV listings, no one else is allowed to copy or display them without the network’s permission. There have been a number of cases on this issue over the years, and similar issues such as copying parts of telephone directories, with varying decisions (e.g. the well-known US Feist Publications case).

IceTV uses the time and tile information from the schedule listings of Australian TV networks (via publications such as the TV Guide) and combines them with its own research to produce its electronic programme guides. This seems innocuous enough – after all, why would the TV networks complain about a service that makes it easier for viewers to watch their television shows?

The first answer is that it is standard commercial practice for corporations to protect their intellectual property. The second and more cutting answer is: because the IceTV guides can be loaded into Personal Video Recorders which can be programmed to skip the advertisements. Some networks do provide “official” online schedules that can be used with PVRs, but these can only be used with “approved” devices which prevent ad-skipping, whereas IceTV’s schedules will work with “unofficial”, third-party devices that enable ad-skipping.

So Nine Network sought to prevent IceTV from using its TV listings by claiming that IceTV infringed copyright in those listings. If Nine Network was successful, then IceTV would have needed to obtain a licence from the network in order to incorporate the material into its personal guides, which (it was said) would effectively have shut down IceTV’s business.

It is important to note that Nine Network does own the copyright in its TV listings – that was conceded by IceTV, and it has long been recognised by the law that copyright does exist in such compilations of facts (in this case, the times and titles of upcoming TV shows). If IceTV copied Nine’s listing in their entirety – including the time, title, episode summary, rating, etc – then that would certainly breach copyright.

However, a key fact in the case was that IceTV did not copy Nine’s listings in their entirety. Instead they used only the title and time information to correct and fill in gaps in schedules that they largely produced themselves by watching TV and “reverse engineering” a basic schedule. Nine argued that this still amounted to the copying of a substantial part of their listings, and therefore infringed their copyright.

Under New Zealand and Australian copyright law, copyright is only infringed when a work is copied (or otherwise improperly dealt with) in its entirety or in “substantial part” – section 29 of the Copyright Act 1994. In other words, copying a “non-substantial” part of the work does not infringe copyright. Of course, the trick is determining what “substantial” means. As this case and others have shown, different judges can come to different conclusions on the same facts.

In the IceTV case, the central question was essentially whether the time and title information that was copied from Nine’s listings was a “substantial part” of the work (the listings as a whole).

The High Court said no, overturning the opposite finding of a full bench of the court below. The High Court cited the following principle:

“[T]he more simple or lacking in substantial originality the copyright work, the greater the degree of taking will be needed before the substantial part test is satisfied.”

While acknowledging that the programming schedule was developed through a creative process, the court found there was very little “originality” in the actual TV listings stating the titles and times of upcoming programs. The ideas behind the programming schedule may have been highly original, but the expression of the schedule in the form of the published TV listings was not – as the court said, there is very little choice in how to express a time and title for a TV show. Therefore, the originality of the TV listings was very low, and the amount of copying that would amount to a “substantial part” was high. On that basis, applying the principle stated above the court decided that the amount of copying by IceTV was not substantial and therefore did not infringe copyright.

Importantly, the court downplayed arguments relating to the need to protect Nine’s “investment of skill and labour” which had found favour in the court below. The High Court said that while the skill and labour that has gone into producing a work is still a relevant issue, that issue should not distract from the main inquiry, which is whether a substantial part of the actual work (and not the ideas behind the work) was copied.

A large part of the argument in the court below was whether or not IceTV had “misappropriated” Nine’s work. The court below found that it had, and this was a major reason for that court ruling that IceTV had infringed Nine’s copyright. The High Court disagreed with the relevance of this argument and noted:

“A finding that one party has “appropriated” skill and labour, of itself, is not determinative of the issue of infringement of a copyright work. The [Copyright Act] does not provide for any general doctrine of “misappropriation” and does not afford protection to skill and labour alone… [The] statutory requirement that the part of a work taken must be substantial assumes there may be some measure of legitimate appropriation of that investment.”

The court also engaged in a limited economic analysis that will be of great interest to those who believe that copyright law has become too restrictive in modern society:

“Rewarding skill and labour in respect of compilations without any real consideration of the productive effort directed to coming up with a particular form of expression of information can lead to error. The error is of a kind which might enable copyright law to be employed to achieve anti-competitive behaviour of a sort not contemplated by the balance struck in the [Copyright Act] between the rights of authors and the entitlements of the reading public.”

While the carefully worded and nuanced judgment is bound to be the subject of much debate, it does open the door for the increased legitimate (i.e. “fair dealing”) use of copyright material from compilations and databases such as TV listings, for personal and commercial purposes.

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