IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14

HIGH COURT OF AUSTRALIA

FRENCH CJ,

GUMMOW, HAYNE, HEYDON, CRENNAN AND KIEFEL JJ

ICETV PTY LIMITED & ANOR APPELLANTS

AND

NINE NETWORK AUSTRALIA PTY LIMITED RESPONDENT

IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14

22 April 2009

S415/2008

ORDER

1. Appeal allowed with costs.

2. Set aside the order of the Full Court of the Federal Court of Australia made on 8 May 2008, as varied on 20 August 2008, and in place thereof order that the appeal to that Court be dismissed with costs.

On appeal from the Federal Court of Australia

Representation

J M Ireland QC with S C G Burley SC and J S Cooke for the appellants (instructed by Bartier Perry)

A J L Bannon SC with R Cobden SC and J M Hennessy for the respondent (instructed by Gilbert & Tobin)

D K Catterns QC with A J Ryan and S M Rebikoff intervening as amicus curiae on behalf of Telstra Corporation Limited (instructed by Mallesons Stephen Jaques)

R J Webb SC intervening as amicus curiae on behalf of Australian Digital Alliance Limited (instructed by Baker & McKenzie)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

IceTV Pty Limited v Nine Network Australia Pty Limited

Intellectual property – Copyright – Literary work – Compilation – Infringement – Production by employees of Nine Network Australia Pty Limited ("Nine") of weekly schedules of television programmes to be broadcast on television stations within Nine Network ("Weekly Schedules") – Information from Weekly Schedules used by third parties, with licence from Nine, to produce "Aggregated Guides" containing programme schedules for various television stations – Production by employees of IceTV Pty Limited of electronic programme guide for television using information from Aggregated Guides – Subsistence of copyright in each Weekly Schedule admitted – Alleged infringement of copyright by reproduction of substantial part of Weekly Schedules – Whether reproduction of "substantial part" – Quality of part reproduced – Originality – Information/expression dichotomy – Appropriation of "skill and labour" – Relevance of skill and labour devoted to programming decisions – Relevance of competing interests and policy considerations – Animus furandi.