Nine Network Australia Pty Ltd v IceTV Pty Ltd [2007] FCA 1172

FEDERAL COURT OF AUSTRALIA

Nine Network Australia Pty Ltd v IceTV Pty Ltd [2007] FCA 1172 COPYRIGHT – literary work – compilation – television program schedules – applicant ('Nine') records program title, time of broadcast, additional program information and synopses in schedules – respondent ('Ice') has no direct access to schedules – weekly version of the schedules ('the Weekly Schedule') sent to third parties ('the Aggregators') for publication in aggregated television program guides ('the Aggregated Guides') – admission that copyright subsists in the Weekly Schedule – whether copyright in a single day and time and title information only – compilation must be considered as a whole – no separate copyright in time and title information or single day – mere information – late changes not included in the Weekly Schedule – no copyright in Late Change Notices COPYRIGHT – originality of compilation – preparatory skill and labour in selecting and ordering programs for broadcast – skill and labour in form of weekly schedule including selection, arrangement and expression of information there included COPYRIGHT – effect of aggregation of information on copyright subsisting in compilation – aggregation does not destroy copyright in compilation – Aggregated Guides are separate and distinct compilations – product of the Aggregators' skill and labour – incorporate Nine's preparatory skill and labour COPYRIGHT – infringement – electronic program guide produced by Ice ('the IceGuide') – differences in form and content between the IceGuide and the Weekly Schedule – whether IceGuide infringes Nine's copyright – alleged reproduction of a substantial part of the Weekly Schedule in the course of making and updating the IceGuide – initial IceGuide templates compiled by independent inquiry – synopses independently researched and drafted – repetition in Nine programming from week to week – IceGuide schedules developed by copying same day in a previous week and checking time and title information in Aggregated Guides for variations in programming – scope for variation in selection, arrangement and expression of information in a television guide – distinguishable from a "whole of universe" case – form and content both relevant to infringement – similarity and extent of copying – substantial part measured by reference to the originality of the work allegedly taken – question of fact and degree – consideration of the interests which copyright protects in a compilation – synopses qualitatively important – late changes to programming not part of the Weekly Schedule – "slivers" of time and title information taken from aggregated guides not of sufficient quality or quantity to amount to a reproduction of a substantial part – Ice is not a broadcaster – no taking by Ice of Nine's skill and labour of placing programs so as to maximise viewers – no taking by Ice of Nine's skill and labour in form of the Weekly Schedule – no reproduction of a substantial part of the Weekly Schedule – no infringement COPYRIGHT – alleged communication to the public of the Weekly Schedule – copyright owners "public" includes IceGuide subscribers – Ice determines content of data communicated – alleged authorisation of subscribers' acts of infringement – no infringement as no reproduction of the Weekly Schedule in the course of making and updating the IceGuide COPYRIGHT – unjustified threats of infringement – leave sought by Ice at hearing to file cross-claim alleging unjustified threats – whether proceedings for unjustified threats of copyright infringement can be commenced while infringement proceedings on foot – "threat" ceases once infringement proceedings are commenced – no entitlement to claim damages resulting from commencement and prosecution of proceedings – no utility in injunction or declaration where infringement proceedings dismissed – short period between threats and proceedings – no evidence of damages – discretion exercised to refuse leave Copyright Act 1968 (Cth) ss 10(1), 14(1), 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works: 1886-1986 (1986) NINE NETWORK AUSTRALIA PTY LIMITED (ACN 008 685 407) v ICETV PTY LIMITED (ACN 003 552 216) AND ICETV HOLDINGS PTY LIMITED (ACN 117 626 338) NSD 935 OF 2006