Nine Network Australia Pty Ltd v IceTV Pty Ltd [2008] FCA 925

FEDERAL COURT OF AUSTRALIA

Nine Network Australia Pty Ltd v IceTV Pty Ltd [2008] FCA 925 ICI Australia Operations Pty Limited v Trade Practices Commission (1992) 38 FCR 258 followed Nine Network Australia Pty Limited v IceTV Pty Limited [2008] FCAFC 71 considered Nine Network Australia Pty Ltd v IceTV Pty Ltd (2007) 73 IPR 99 cited Sterling Winthrop Pty Ltd v R & C Products Pty Ltd (1994) ATPR 41-308 cited Universal Music Australia Pty Ltd v Cooper [2005] FCA 1878 cited Welcome Real-Time SA v Catuity Inc (No 2) [2001] AIPC 91,736 cited

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

BENNETT J

27 JUNE 2008

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 935 of 2006

BETWEEN: NINE NETWORK AUSTRALIA PTY LIMITED

(ACN 008 685 407)

Applicant

AND: ICETV PTY LIMITED (ACN 003 552 216)

First Respondent

ICETV HOLDINGS PTY LIMITED (ACN 117 626 338)

Second Respondent

JUDGE: BENNETT J DATE OF ORDER: 24 JUNE 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

In these orders the following terms have the following meanings: Additional Program Detail Information means any one or more of the following categories: (a) episode titles; (b) episode numbers; (c) information about the currency of programs; (d) information about the formats in which programs are to be broadcast; (e) closed captioning information for the hearing impaired; (f) program classification information; and (g) consumer advice. Aggregated Guide means the published television program guide containing information for all free to air channels, including the applicant's channels, that is produced by any of the Aggregators where the guide has been created, in part, by using one or more Nine Weekly Program Schedules provided by the applicant to the Aggregator. Aggregators means HWW Limited, eBroadcast Australia and Pagemasters Pty Limited or any publisher of any other aggregated television guide (printed, electronic or otherwise) whose publication includes the Nine Weekly Program Schedules. IceGuide means the first respondent's television program schedules, whether known by that name or otherwise, and includes all versions of the IceGuide including IceGuide Widget and IceGuide PIMP. IceTV Database means the first respondent's database used in the preparation of its IceGuide. Nine Weekly Program Schedules means the applicant's weekly television program schedules which comprise: (a) Nine Program Time and Title Information; (b) Additional Program Detail Information; and (c) Nine Synopses. Nine Program Time and Title Information means the respectively associated dates, titles and intended starting times for the transmission of the applicant's respective television programs included in a Nine Weekly Program Schedule. Nine Synopses means descriptive information about individual television programs included in a Nine Weekly Program Schedule. THE COURT DECLARES THAT: 1. The applicant is the owner of the copyright in the Nine Weekly Program Schedules. 2. The first respondent has infringed the copyright in certain of the Nine Weekly Program Schedules, by: (a) reproducing in a material form; (b) authorising the reproduction in a material form of; (c) communicating to the public; substantial parts of those Nine Weekly Program Schedules, without the licence of the applicant. THE COURT ORDERS THAT: As against the first respondent 3. The first respondent, whether by itself, its servants or agents or otherwise, be permanently restrained from infringing copyright in any of the Nine Weekly Program Schedules by: (a) reproducing in a material form; (b) authorising the reproduction in a material form of; (c) communicating to the public; or (d) authorising the communication to the public of, the whole or a substantial part of any Nine Weekly Program Schedules (whether made before or after the date of the making of this order), without the licence of the applicant. 4. Without limiting order 3 above the first respondent, whether by itself, its servants or agents or otherwise, be permanently restrained from: (a) reproducing in a material form; (b) authorising the reproduction in a material form of; (c) communicating to the public; or (d) authorising the communication to the public of, Nine Program Time and Title Information (including in the form of the IceGuide), to the extent that such information reproduces the whole or a substantial part of the Nine Weekly Program Schedule, without the licence of the applicant. 5. The first respondent, whether by itself, its servants or agents or otherwise, delete forthwith from any television program schedules (of which it has electronic copies including in the IceTV Database) all Nine Program Time and Title Information (but not the program and episode titles for any of the applicant's television programs) entered from 1 December 2005 to the date of this order. Suspension 6. The operation of orders 3 to 5 inclusive be suspended until 5.00 pm on 25 June 2008 for the purpose of permitting the first respondent to seek a stay of those orders, if advised. Second respondent 7. The Court reserves the question of whether any orders should be made in respect of the second respondent.