Australian Electronic TV Guide Opinion

A Federal Court in Sydney, Australia has handed down a very interesting opinion in a case testing the scope of compilation copyright and independent creation. Channel Nine sued IceTV, the creator of an electronic program guide, claiming copyright infringement of Nine's Weekly Schedule. Users of IceTV’s service can record up to two channels at once from their DVR, computer, or cell phone, and skip advertisements. The court, per Judge Annabelle Bennett, held that while Channel 9’s owns a copyright in its schedule, it had not been infringed. She added though that “Nine cannot claim copyright in the time and title information for a single day or week as if that information were itself a separate compilation."

IceTV was found to have copied some of the information from Channel Nine, but to have engaged in its own research as well, combining information from a number of sources. This activity led the judge to conclude: “It is open at law to a person to ascertain the facts recorded in a compilation on the basis of that independent inquiry. This is what IceTV did…” She then goes on at length to describe the process by which IceTV created its guide.

Australia had an earlier case that raised some of these issues, Desktop Marketing Systems Pty Ltd v Telstra Corporation [2002] FCAFC 112, in which the Full Federal Court of Australia held that copyright subsisted in the white pages telephone directory, but based on a more liberal approach to originality as requiring that for to works be ‘‘original,” they need only “originate from the author." The U.S. Feist opinion, by contrast held the white pages uncopyrightable, and on constitutional grounds for lack of originality. On the infringement side of the Desktop case, defendant copied almost the whole directory (as was true in Feist but with a different result). This was not the case in IceTV, and makes that opinion more interesting for that reason alone.

Ice itself has commented on the opinion here, which includes a link to the judge’s summary of her findings.
A Federal Court of Sydney Australia has handed down a very interesting opinion in a case testing the scope of compilation copyright and independent creation. Channel Nine sued IceTV, the creator of an electronic program guide, claiming copyright infringement of its own Weekly Schedule. Users of IceTV’s service can record up to two channels at once from their a DVR, computer, or cell phone, record from two channels at once, and skip advertisements. The court, per Judge Annabelle Bennett held that while Channel 9’s owns a copyright in its schedule, but that it had not been infringed. She added though that “Nine cannot claim copyright in the time and title information for a single day or week as if that information were itself a separate compilation.

IceTV was found to have copied some of the information from Channel Nine, but to have engaged in its own research as well, combining information from a number of sources. This activity, led the judge to conclude: “It is open at law to a person to ascertain the facts recorded in a compilation on the basis of that independent inquiry. This is what IceTV did…” She then goes on at length to describe the process by which IceTV created its guide.

Australia had an earlier case that raised some of these issues, Desktop Marketing Systems Pty Ltd v Telstra Corporation [2002] FCAFC 112, in which the Full Federal Court of Australia held that copyright subsisted in the white pages telephone directory, but based on a more liberal approach to originality as requiring that for to works be ‘‘original,” they need only “originate from the author. On the infringement side of the Desktop case, defendant copied almost the whole directory. This was not the case in IceTV, and makes it interesting for that reason alone.

Ice itself has commented on the opinion here, which includes a link to the judge’s summary of her findings.
http://www.icetv.com.au/news/?p=44

In a twist that may raise some eyebrows, one should report the notice that IceTV itself uses:

IceTV's electronic program guide (EPG) is an original work created by IceTV's staff. Some programs are available elsewhere that gather EPG data from various sources such as websites. IceTV does not recommend use of such programs as their use is likely to infringe other parties' copyright. Such programs may also be unreliable, especially if the owners of the data take technical or legal steps to prevent their work being copied. IceTV's EPG is its own, original work and IceTV owns the copyright. You may not copy or distribute it in any way except for the personal use for which you obtain license when subscribing to the service.



In a twist that may raise some eyebrows, one should report the notice that IceTV itself uses:

IceTV's electronic program guide (EPG) is an original work created by IceTV's staff. Some programs are available elsewhere that gather EPG data from various sources such as websites. IceTV does not recommend use of such programs as their use is likely to infringe other parties' copyright. Such programs may also be unreliable, especially if the owners of the data take technical or legal steps to prevent their work being copied. IceTV's EPG is its own, original work and IceTV owns the copyright. You may not copy or distribute it in any way except for the personal use for which you obtain license when subscribing to the service.