Nine Network Australia Pty Limited v IceTV Pty Limited

The case before the court involved a dispute between Nine Network Australia Pty Limited (Nine) and IceTV Pty Limited (Ice). Nine alleged that Ice had infringed its copyright by copying the weekly television programming schedules (Weekly Schedules) created by Nine and by using the information contained in those schedules. Ice disputed these claims, and the matter proceeded to trial. The primary Judge found in favour of Nine and held that Ice had infringed Nine's copyright by copying the Weekly Schedules and by using the information contained in them. Ice appealed this decision.

The primary legal issues before the court were whether the Weekly Schedules constituted literary works in which copyright subsisted, the effect of aggregation on the copyright in the Weekly Schedules, whether Ice had copied the Weekly Schedules when it created the first templates for the IceGuide, and whether Ice's ongoing activities had infringed Nine's copyright. The court found that the Weekly Schedules were literary works and that copyright subsisted in them as compilations. The court also found that Ice had copied the Weekly Schedules when it created the first templates for the IceGuide. However, the court found that Ice's ongoing activities did not infringe Nine's copyright because the information contained in the Weekly Schedules was not original and because Ice had not copied a substantial part of the Weekly Schedules.

The court found that the Weekly Schedules were literary works because they were compilations that involved sufficient skill and labour. The court rejected Nine's argument that copyright subsisted in the time and title information in the Weekly Schedules, finding that the Copyright Act provides for the subsistence of copyright in a compilation of information, not in information itself. The court also found that Ice had copied the Weekly Schedules when it created the first templates for the IceGuide because it had used the Weekly Schedules as a reference to ensure that the information in the IceGuide was accurate. However, the court found that Ice's ongoing activities did not infringe Nine's copyright because the information contained in the Weekly Schedules was not original and because Ice had not copied a substantial part of the Weekly Schedules.

The appeal was allowed, and the decision of the primary Judge was set aside. The proceedings were remitted to the primary Judge for hearing and determination consistent with the court's reasons for judgment. The respondents were ordered to pay the appellant's costs of the appeal and the costs of the proceeding at first instance, with certain exceptions.