+ Compilations and Ice TV Case

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Channel Nine broadcasts between 168 and 210 programs per week. The selection, arrangement and ordering of programs requires the investment of considerable skill and labour. Nine’s programming decisions were reduced to material form in Weekly Schedules. The Weekly Schedules were not issued to the public. They were sent to television program aggregators (Aggregators) who combined the information with comparable information received from other television broadcasters to produce further programs (Aggregated Guides). Aggregated Guides were available to the public online and in print. Not all of Nine’s programming information was disclosed to the Aggregators in the Weekly Schedules; late change notices were sometimes issued.

It was common ground that Nine had copyright in the relevant Weekly Schedules. The question was whether Ice TV had infringed Nine’s copyright by indirectly copying time and title information from the Weekly Schedules by viewing the Aggregated Guides.

Originality was held to have derived largely from Nine’s creativity in the selection and arrangement of programs for broadcast. The originality of that information lay in the skill and labour expended in selecting and arranging the programs as opposed to the form in which Nine presented it.

The time and title information was a crucial aspect of the compilation. Everything else in the Weekly Schedules, such as synopses and program classifications, was subsidiary. The time and title information reflected the expenditure of a great deal of skill and labour. That skill and labour was not separate and discrete from the skill and labour involved in setting those decisions down in the form of Weekly Schedules. It was part of a single process leading to the creation of the copyright work, being the written record of Nine’s programming decisions and the associated program information.

It was held that Ice TV’s use of many pieces of time and title information, indirectly copied from the Weekly Schedules on a weekly basis, involved the reproduction of more than slight or immaterial portions of Nine’s work.

For the Full Court, given the quality of the material taken, namely the most creative elements of the skill and labour exercised by Nine in creating the Weekly Schedules, the substantiality of the material taken was apparent.

Ice was accordingly found to have infringed. It has lodged an application for special leave to appeal to the High Court of Australia.

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