IceTV
The new law of copyright in Australia
Warwick A Rothnie
Barrister
Victorian Society of Computers & Law
13 July 2009
http://ipwars.com

Nine’s Weekly Schedule http://ipwars.com

Classification
Paper Programming
Grid Synopsis
Master Paper Grid Catalogue No.
Marketing
Excel Spreadsheet
9 database
Weekly Schedule
Aggregated Guides
Aggregators
- 4 weeks - 17 to 14 days - 10 days
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Leslie v J.Young & Sons
GA Cramp & Sons Ltd v Frank Smythson Ltd
Victoria Park Racing v Taylor
3
12
4
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‘compilation’ added to 1911 Act
Spicer Committee 1959 ...
Desktop (2001) 55 IPR 1 at [439]
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It has been held that copyright may exist in
various compilations such as an alphabetical
list of railway stations, a list of fox-hounds
and hunting dogs and lists of stock exchange
prices and football fixtures. ....
We think that the law in this regard should
not be changed.
[77]
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... the originality in Telstra's compilations lies
in the labour and expense involved in
compiling the information, ...
Desktop had taken a substantial part of each
of Telstra's copyright works.
It is not to the point that Desktop may not
have adopted Telstra's mode of
presentation ....
Desktop at [439]
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Meanwhile:
• Feist v Rural Telephone Service (1991 -
USA)
• Tele-Direct v American Business Information
(1997 - Canada)
• Directive 96/9/EC on the Legal
Protection of Databases
• compilation other than a database (1997
- UK)
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... the skill and labour in selecting and
arranging programming should not be regarded
as separate and discrete from the extremely
modest skill and labour involved in setting down
on paper the programs already selected and
presenting them in the form of the Weekly
Schedules.
... were part of a single process ....
[128]
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Any reproduction of the time and title
information in the IceGuide was not a
reproduction of a substantial part of any of
the Weekly Schedules (or the Nine
Database).
[56], [185] (+ [123])
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2
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Weekly Schedules as a composite whole are
original
• selection and presentation of time and
title + additional program info and
synopses
[152]
• orderly arrangement of elements ...
choices were made about what programs
were included
[41]
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Copyright does not protect facts or
information.
Copyright protects the particular form of
expression of the information, namely the
words, figures and symbols in which the
pieces of information are expressed, and the
selection and arrangement of that
information.
... crucial part of the balance ... [28], [102]
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one has to show –
what is taken is a substantial part of the
whole copyright work
[52], [169]
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skill and labour in program selection –
‘preparatory’ skill and labour – was not
relevant
[52 -54], [167, 125 - 128]
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No – extremely modest – skill and labour
in setting down the time and title
information in chronological order: ...
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• baldly stated matters of fact/intention
are inseparable from/co-extensive with
their expression
[170]
[54] see [42] - [43]
• no animus furandi
[171] – [184]
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Milwell v Olympic (1999) 43 IPR 32
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Footnote 21 (66)
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Some other thoughts
• Balance / competition concerns
• Significance of 2 judgments
- subsistence if originates? [33], [48]
- not substantial just because originates
[37] - [38]
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Classification
Synopsis
Catalogue No.
Marketing
9 database
Weekly Schedule
Aggregated Guides
Aggregators
[23] vs [95] - [106], [150] - [152]
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Team Sheet
Ponting 1
Clarke 2
Katich 3
Hughes 4
Hussey 5
North 6
Haddin 7
Hauritz 8
Hilfenhaus 9
Siddle 10
Johnson 11
Lee 12
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One final point ...
187. ... this Court [should], to the
contrary of Desktop Marketing, affirm
that there must be “creative spark” or
exercise of “skill and judgment” before
a work is sufficiently “original” for the
subsistence of copyright.
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It is by no means apparent that the law even before
the 1911 Act was to any different effect to that for
which the Digital Alliance contends.
Desktop Marketing ... out of line with the
understanding of copyright law over many years.
? Desktop ‘labour and expense’ per se
However ....
[188]
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