Nine wins Ice TV appeal

In Nine Network Australia Pty Limited v IceTV Pty Limited  [2008] FCAFC 71 the Federal Court of Australia Full Court allowed Nine's appeal against the original decision (discussed here) which permitted Ice to reproduce Nine's TV schedules in electronic form.

The Full Court decided that Ice TV had infringed Nine’s copyright in its television program schedules by indirectly copying  a substantial part of the television guides.

On the issue of substantiality of the copying the Court decided:

Ice’s use of time and title information, derived ultimately from the Weekly Schedules, involved the reproduction of more than a slight or immaterial portion of Nine’s copyright work...Ice appropriated many pieces of the time and title information, apparently on a weekly basis. It did so in order to create something commercially valuable out of templates that otherwise would have had no commercial value to it...When the quality of the material taken by Ice is considered, the substantiality of the part taken becomes even clearer.  Ice took, via the Aggregated Guides, precisely the pieces of information that reflected the exercise of skill and labour by Nine in determining the program for a particular day or other period.

On whether there was a link between the time and title information in IceGuide and Nine's Weekly Schedule the Court said:

Ice used Nine’s copyright work by indirectly copying time and title information from the Aggregated Guides.  Ice could not fulfil the requirements of its business model unless IceGuide incorporated accurate and up-to-date details of Nine’s programming schedule...Ice in fact updated and confirmed the accuracy of its database by accessing, on a regular and systematic basis, the Aggregated Guides.  Ice took time and title information from, and checked other details against, the Aggregated Guides.

For an analysis of the decision see Kim Weatherall's comments here.