Where copyright cuts no Ice: scaling back compilation protection in Australia

>An Intellectual Property news circular from Australian IP specialists Allens Arthur Robinson reports on IceTV Pty Limited v Nine Network Australia Pty Ltd [2009] HCA 14, 22 April 2009, in which the High Court of Australia has unanimously upheld IceTV's appeal, holding that Ice did not reproduce a substantial part of Nine's television programme schedules in its electronic programme guides. In their note on this decision, the AAR team of Miriam Stiel, Amanda Andreazza and Katherine McMahon conclude:

"Although the High Court did not make any findings on the extent to which copyright subsisted in the weekly schedules because of admissions made by Ice, it seems clear from the findings made on infringement that there has been a scaling back of the protection which Australian copyright law provides to creators and publishers of compilations. This may prompt affected organisations to lobby for amendments to the legislation to introduce database rights in Australia similar to those which exist in the United Kingdom.

At a practical level, creators of compilations should consider whether they do, or can, express their compilations in an original way. The greater the original productive thought which has gone into determining the particular form in which the facts are expressed in a compilation, the greater the protection. There may be some factual compilations which, by their very nature, cannot be expressed with any level of originality and so they will not be protected by copyright law.

Comments made by the court also emphasise the importance of being able to identify precisely both the compilation in which copyright is said to subsist and all of the authors of that copyright work. This may be particularly difficult where the facts contained in the compilation are regularly updated; where an organisation records the same factual material in more than one form of compilation; and where the process of creation of the compilation involves both a large number of people and significant use of technology. Creators of compilations who wish to protect their copyright will need to keep full records of the whole process of preparation of the relevant compilations....".

Note by Warwick Rothnie (ipwars.com) here