Copyright in compilations: the start of the Ice Age

On 22nd April 2009 the High Court of Australia issued a landmark judgment in IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14 regarding copyright in compilations and databases. The case concerned the taking of information from weekly television programme schedules to produce competing electronic programme guides.

Nine produces weekly television programme schedules which include columns outlining starting times, programme titles, synopses and other programme information. The Nine schedules are forwarded to aggregators which produce "aggregated guides" - schedules of programmes to be broadcast on a variety of television stations. These are later published in various magazines and other media channels.

IceTV provides a subscription-based electronic programme guide for download to digital televisions, set-top boxes and recording devices, known as the Ice Guide. In publishing the Ice Guide IceTV predicts programme time and title information based on its observations of past programming behaviour and knowledge of the television industry. IceTV’s predictions are then checked against the starting time and programme title information published in the aggregated guides. Where discrepancies are identified, the Ice Guide is typically amended to reflect the published information.

Previously, the Australian courts had taken the position that factual information compiled through "sweat of the brow" (ie, involving labour and expense in compiling what is essentially a list of facts without any intellectual creation or effort) could be protected by copyright. It was encouraging for database owners and compilation makers to have protection for the time and money spent in producing their compilations.

The High Court has now essentially turned the situation around, requiring much more than mere labour and expense to attract copyright protection. The compilation must now involve a sufficient degree of originality or creative effort in order to attract copyright protection. In compilations which are simply a table of facts (eg, bus timetable information), the creators of that information can no longer assume reliance on copyright to protect those facts from reproduction by third parties. Rather, only information that requires mental effort and creativity in the way in which the data or facts are selected and presented will be protected.

IceTV has significantly scaled back the scope of copyright protection for compilations in Australia. Numerous works that had previously been protected by copyright law are now unlikely to pass the test for originality.

This is encouraging for businesses that wish to use compiled unoriginal data for their own purposes (eg, to reproduce meteorological data, train timetables and sporting lists), as use of that factual information will no longer be caught by copyright. On the other hand, it now requires businesses which spend significant time and effort creating their own compiled data to reconsider the ways of protecting their endeavours.

Protection of compilations through contracts with third parties must now be given much greater consideration. Drafting more restrictive binding contractual clauses when authorising the use of compiled data by third parties is a must. While this may be more difficult when the data is publicly available (eg, train timetables on a website), requiring acceptance of terms through "click-wrap" contracts on websites, for example, which bind users to restrictions on the use and reproduction of the data, can be effectively utilised.

In IceTV the High Court held that as the part of the Nine schedules reproduced by IceTV lacked the requisite creativity or originality (ie, the time and title information), no copyright infringement was found. Therefore, IceTV was free to use the time and title information compiled by Nine without authorisation or payment of licence fees.

This case is a significant development in Australian copyright law which it is anticipated will be followed by a push for statutory legal reform, such as the introduction of sui generis database rights, to broaden protection for compilations further.