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IceTV
The new law of copyright in Australia
       Warwick A Rothnie
           Barrister
     Victorian Society of Comput...
Nine’s Weekly Schedule   http://ipwars.com
Classification
Paper Programming
       Grid                                                   Synopsis

                  ...
http://ipwars.com
http://ipwars.com
http://ipwars.com
Leslie v J.Young & Sons

GA Cramp & Sons Ltd v Frank Smythson Ltd

Victoria Park Racing v Taylor
                         ...
‘compilation’ added to 1911 Act

Spicer Committee 1959 ...

Desktop (2001) 55 IPR 1 at [439]



                          ...
It has been held that copyright may exist in
various compilations such as an alphabetical
list of railway stations, a list...
... the originality in Telstra's compilations lies
in the labour and expense involved in
compiling the information, ...

D...
Meanwhile:
• Feist v Rural Telephone Service (1991 -
   USA)
• Tele-Direct v American Business Information
   (1997 - Cana...
... the skill and labour in selecting and
arranging programming should not be regarded
as separate and discrete from the e...
Any reproduction of the time and title
information in the IceGuide was not a
reproduction of a substantial part of any of
...
2


    http://ipwars.com
Weekly Schedules as a composite whole are
original

• selection and presentation of time and
  title + additional program ...
Copyright does not protect facts or
information.

Copyright protects the particular form of
expression of the information,...
one has to show –

   what is taken is a substantial part of the
   whole copyright work
                                 ...
skill and labour in program selection –
‘preparatory’ skill and labour – was not
relevant
                               [...
No – extremely modest – skill and labour
in setting down the time and title
information in chronological order: ...




  ...
•   baldly stated matters of fact/intention
    are inseparable from/co-extensive with
    their expression
              ...
Milwell v Olympic (1999) 43 IPR 32
                           http://ipwars.com
Footnote 21 (66)




                   http://ipwars.com
Some other thoughts

• Balance / competition concerns
• Significance of 2 judgments
  - subsistence if originates?         ...
Classification

                           Synopsis

                        Catalogue No.

                          Marke...
Team Sheet
 Ponting                   1
  Clarke                   2
  Katich                   3
 Hughes                 ...
One final point ...
187. ... this Court [should], to the
contrary of Desktop Marketing, affirm
that there must be “creative ...
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...
http://ipwars.com
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IceTV The New Law of Copyright in Australia

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The slides from my talk to VSCL on the High Court of Australia's ruling that IceTV did not infringe Nine's copyright in its program listings.

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IceTV The New Law of Copyright in Australia

  1. 1. IceTV The new law of copyright in Australia Warwick A Rothnie Barrister Victorian Society of Computers & Law 13 July 2009 http://ipwars.com
  2. 2. Nine’s Weekly Schedule http://ipwars.com
  3. 3. 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 http://ipwars.com
  4. 4. http://ipwars.com
  5. 5. http://ipwars.com
  6. 6. http://ipwars.com
  7. 7. Leslie v J.Young & Sons GA Cramp & Sons Ltd v Frank Smythson Ltd Victoria Park Racing v Taylor 3 12 4 http://ipwars.com
  8. 8. ‘compilation’ added to 1911 Act Spicer Committee 1959 ... Desktop (2001) 55 IPR 1 at [439] http://ipwars.com
  9. 9. 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] http://ipwars.com
  10. 10. ... 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] http://ipwars.com
  11. 11. 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) http://ipwars.com
  12. 12. ... 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] http://ipwars.com
  13. 13. 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]) http://ipwars.com
  14. 14. 2 http://ipwars.com
  15. 15. 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] http://ipwars.com
  16. 16. 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] http://ipwars.com
  17. 17. one has to show – what is taken is a substantial part of the whole copyright work [52], [169] http://ipwars.com
  18. 18. skill and labour in program selection – ‘preparatory’ skill and labour – was not relevant [52 -54], [167, 125 - 128] http://ipwars.com
  19. 19. No – extremely modest – skill and labour in setting down the time and title information in chronological order: ... http://ipwars.com
  20. 20. • baldly stated matters of fact/intention are inseparable from/co-extensive with their expression [170] [54] see [42] - [43] • no animus furandi [171] – [184] http://ipwars.com
  21. 21. Milwell v Olympic (1999) 43 IPR 32 http://ipwars.com
  22. 22. Footnote 21 (66) http://ipwars.com
  23. 23. Some other thoughts • Balance / competition concerns • Significance of 2 judgments - subsistence if originates? [33], [48] - not substantial just because originates [37] - [38] http://ipwars.com
  24. 24. Classification Synopsis Catalogue No. Marketing 9 database Weekly Schedule Aggregated Guides Aggregators [23] vs [95] - [106], [150] - [152] http://ipwars.com
  25. 25. 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 http://ipwars.com
  26. 26. 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. http://ipwars.com
  27. 27. 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] http://ipwars.com
  28. 28. http://ipwars.com
  • noric

    Jul. 14, 2009

The slides from my talk to VSCL on the High Court of Australia's ruling that IceTV did not infringe Nine's copyright in its program listings.

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