LawFont.com

One interesting case that started its hearing today in the Federal Court in Australia – that a few people have been emailing me about – is the IceTV case. This case is all about compilations and copyright. The case is generating comment in the Australian blogosphere: Peter Black’s coverage from Sunday, and Joshua Gans’ post reproduced in Crikey today. Black provides some interesting background on the case, and in particular, on the attitude of media players other than Channel Nine – that is, the other people who did not sue. Just goes to show that so much about our caselaw is a result of plays and concerns outside the legal system. (don’t forget that Nine was the initiator of legal action in our most significant fair dealing case of recent times, The Panel case, too). Gans is an economist, so you should ignore some of the legal conclusions and speculations he makes, but he rightly highlights that at heart, we do have a serious potential competition issue here, particularly if Nine were to win. A few of my thoughts overleaf.

Unlike quite a few countries, Australia protects factual, ‘whole of universe’ collections of data with its copyright law. In the US, in the Feist case, the US Supreme Court held that copyright did not subsist in the White Pages phonebook – copyright, it was held, by protecting only ‘original’ works, requires a ‘modicum of creativity’ before protection will attach. In the European Union, legal protection for factual compilations, enacted via a 1996 Database Directive, has been read narrowly by the European Court of Justice, so that no protection extends to bodies which ‘create’ data (including telephone companies, sporting bodies which produce sports listings, and – according to the European Commission study late last year – television broadcasters who ‘create’ program listings. Only bodies which make a substantial investment in collection or verification of data are protected in Europe.

In Australia, when the Feist situation came up in a dispute over copyright in the White Pages phonebook, our courts answered the issue in the opposite manner – there is copyright here, our courts opined (Full Court here, Trial Judge here). The High Court refused special leave.

The IceTV case is really interesting for a couple of reasons. One is that in the White Pages case, the issue that arose in infringement was whether it mattered that the Desktop product didn’t look like the Telstra White Pages (you know, not being a book and all). It was held that the visual similarity didn’t matter. What the court didn’t have to grapple with in Desktop is exactly when an alleged infringer will be ‘copying’ another’s compilation of fact. How, exactly, are you allowed to ‘gather’ your compilation if you want to avoid infringement – particularly in a case where there is in effect a monopoly supplier of the original information? In Desktop, there was no question on the facts that the defendant was directly typing out the listings from the White Pages. That is, apparently, not the case for IceTV, which appears to get its information more indirectly than that. We might get some comments on just how one goes about infringing rights in factual compilations.

The other reason the case is interesting is when you imagine the scenario outlined by Gans – what would happen if (a) Nine won the copyright case and (b) Nine refused to license the data (as previous news reports appear to have indicated does happen). Could this be controlled – and if so, how? Where, exactly, is the legal tool for limiting behaviour like that which looks like an abuse of the copyright and an attempt to extend the power of the copyright owner beyond the original market? Is it competition law? Or does Australia need a doctrine, like that in the US, of ‘copyright misuse‘ to limit a copyright owner’s remedies where they are not in fact exploiting their copyright and want only to control another market? At least in Telstra, it was arguable that Telstra wanted to exploit its effort in making up the white pages. Is Nine doing so? I wonder…

An interesting case to watch. And another case which highlights the strangeness and protectiveness of Australian copyright law – that this case, unimagined in the US, apparently unsupported in EU law, is sufficient to go to court on here in Australia.