IceTV Iced: Kangaroos Hopping Mad

In August of last year, I did a post on a decision by Justice Annabelle Bennett of the Federal Court in Sydney, Australia in a copyright infringement suit brought by the Channel Nine Network in Australia against IceTV for the latter's electronic program guide. Ice's EPG copied schedule information from Nine's weekly guides. Earlier background on the suit can be found here in a post by Kim Weatherall, and here in a post by Peter Black. IceTV was found to have copied 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…” That made sense to me.

On May 8th, Justice Bennett's decision was reversed on appeal. Here is a link to the appellate opinion. Kim Weatherall has a long post on the opinion here, with a follow-up with other excellent links here. As Professor Weatherall points out regarding the appeal: "This truly was an all-stars copyright case: interesting issues, an all-star IP bench (including the CJ himself, plus two senior IP heavies - Justices Lindgren and Sackville) (note too - the same bench that sat on the Desktop Marketing case), no less than 4 senior counsel (all of them IP heavies in their own right) plus juniors." That said, for American lawyers, the opinion, as with the earlier opinion by in Desktop Marketing Systems Pty Ltd. v. Telstra Corporation, Ltd. [2002] FCAFC 112, involving telephone directories, may prove baffling. Not that baffling American lawyers should be any consideration for Australians: I am merely noting that Australian law on the issues of originality and infringement of factual compilations is radically different than U.S. law, at least post-Feist. (I think pre-Feist too, but there were a few sweat of the brow opinions before Feist).

I leave it to Australian copyright experts -- of whom there is a vast number in that magnificent country -- to debate whether the court of appeals got the IceTV issue right as a matter of Australian law and/or policy. I do note these remarks by Professor Weatherall:

In summary? A judgment that is consistent with the trend of Australian authority, and entirely [’entirely’ is a bit strong for a preliminary view!!!] consistent with the reasoning of the (identical) Full Federal Court in Desktop Marketing. But a judgment which also illustrates how far away, in some respects, Australian copyright law is from copyright law in other countries, including the US (with its concepts of thick and thin copyright), and the UK now that the UK has the Database directive. And a judgment that emphasises that Australian copyright law truly does protect information, and not just expression (the judgment is notable for not even talking about that issue).

My question about both Desktop Marketing and now IceTV is a conceptual one: where protection is based on sweat of the brow, how is there any room for the traditional substantial similarity analysis that the court nevertheless ploughs through, including a discussion of qualitative takings? To be clear about the context of the question: plaintiff did not claim copyright in the form of the weekly guides, meaning, I take it, the selection, coordination, or arrangement in U.S. compilation terms. Rather, the claim was in the sweat of the brow. Justice Bennett below had tried to make a fine distinction about types of labor, phrasing the question as "not whether Ice had taken the skill and labour which had been expended in programming decisions, but whether it had taken [Nine's] skill and labour of creating the work." This framing of the question at least tried to separate out two distinct activities, the first the creation of what Americans would call the creation of the broadcast day -- the actual programming that was broadcast --, and the second being whatever effort went into the creation of the weekly guide from which Ice took information. The court of appeals was having none of this: "it would seem that the originality of [the time and title] information lay not so much in the form in which None presented it, but the skill and labour expended in selecting and arranging the programs." (para 94).

To an American, I see two problems with this aside from the avowed protection of sweat of the brow (see paragraph 92 of the appellate opinion): first, it grants protection to the weekly guides based on what was done in constructing the actual programming rather than in constructing the guides, and, second, it absolutely protects facts. Given this, the opinion could have been quite short: did Ice expend its own sweat of the brow? If not, case over, and let's dispense entirely with the traditional infringement analysis. I say this not to be catty (I leave that to the IPKat, meow!), but rather to note than sweat of the brow is based on unfair competition, not copyright, so why not just decide it that way?