What is the interest that Nine's copyright protects?
194 Justice Lindgren approached the test of infringement in Desktop by a consideration of the interest which copyright is intended to protect in the particular case (at [223]). In Desktop, it was the skill and labour of gathering together in one place the details of all of the members of a given universe - all the telephone subscribers in a region. The manner of arrangement of the details was then "inevitable" or "predictable" and involved little work.
195 In the present case, the interest which copyright is intended to protect is not necessarily a single interest. Potential candidates suggested by the evidence include:
· The skill and labour of placing programs so as to maximise viewers.
· The skill and labour of recording the Nine Programming into a material form (the Weekly Schedule) for distribution to the Aggregators and, in turn, the public.
· Control of the timing of the release of program information for competitive reasons.
· Control of the ability to record programs broadcast by stations within the Nine Network and its affiliates.
· Control of the content of the published program information and to ensure that the published compilation is accurate.
196 The copyright subsisting in the Weekly Schedule as an original literary work will not necessarily protect each of these interests. Section 31 of the Act prescribes the exclusive rights that comprise the copyright in such a work. For present purposes, the relevant right is the exclusive right to reproduce the work in a material form (s 31(1)(a)(i) of the Act).
197 Nine relies upon the fact that Ice competes with it directly, in the sense that Nine sub-licenses its program listings information through HWW to Foxtel for use in an EPG, the Foxtel Digital Guide. Ice does provide its subscribers with the ability to record Nine programs in digital format, other than by subscription to Foxtel. However, it is not part of Nine's pleaded case that copyright subsists in its television broadcasts or the programs themselves. Nine's copyright in the Weekly Schedule does not extend to protect the interests in the broadcast and recording of those programs that are listed in the compilation (Ricketson S, The Berne Convention for the protection of literary and artistic works: 1886-1986 (1986) at 299, cited in Desktop at [74] per Lindgren J). Those interests are not protected by the compilation but by the copyright which subsists, if established, in Nine's television broadcasts and the programs themselves as copyright works. For example, 'there may be copyrights under Pt IV [of the Act] in a cinematograph film which is the subject of a television broadcast, and the film may utilise the copyrights under Pt III [of the Act] in, for example, original dramatic and musical works' (Network Ten 218 CLR 273 at [31] per McHugh A-CJ, Gummow and Hayne JJ).
198 Ice does not take the skill and labour of placing programs in that it plays no part in the placement of programs. It is not in competition with Nine to attract viewers in the sense of competition with other television networks. It does not have access to information from the Weekly Schedule until that information is released to the Aggregators and published by them in the Aggregated Guides. It does not take from Nine the timing of the release of the information, as Nine chooses when to provide the Late Changes Notices to the Aggregators for inclusion in the published Aggregated Guides. Ice's business plan requires it to be accurate. Mr Rilett may reject specific time and title information in the published guides and substitute his own listing of a program, although there is no evidence to suggest that this is other than an infrequent occurrence.
199 In determining whether a defendant has taken a substantial part in quality of a work, the impact of the copying on the interest protected by the copyright is relevant (Lahore J and Rothnie W, Copyright and Designs at [34.130]). This, in turn, may make take account of the commercial interests of the copyright owner and whether the parties are in competition, as well as whether there has been a taking of skill and labour. However, the reference point is the original work for which protection is claimed. A compilation is the collection, assembly and arrangement of chosen information into a single entity. Cases addressing the taking of a part of an artistic work, for example a line in a poem or a refrain in a musical work, may address substantial part and the quality and quantity taken differently.
200 The question is one of protection of the relevant skill and labour (Desktop at [235] per Lindgren J citing Laddie J in Autospin (Oil Seals) Ltd v Beehive Spinning (a firm) [1995] RPC 683 at 697-8). Once sufficient skill and effort have been expended in working out the information and writing it down, the compilation so created is a literary work and protected by copyright. As put by Lindgren J at [238]:
'[t]he relevant principle is that where copyright protection is attracted to a compilation of factual information by the labour of collecting, verifying, recording and assembling the data and not by reference to the form of the compilation, reproduction does not require formal resemblance, and the notion of a substantial part of the compilation is not defined by reference to its form.' (emphasis added)
It follows that where the relevant skill and labour is referable also to the form of the compilation, the notion of a substantial part of the compilation is also defined by reference to its form.
201 It is not disputed that Nine's employees expend skill and labour in the content and arrangement of the Weekly Schedule in the form in which it is sent to the Aggregators.
202 Nine contends that, once Mr Healy has decided on the order of the programs best to suit Nine's commercial and strategic interests, the time and title information in the Weekly Schedule is, in the words of Lindgren J in Desktop at [21], a "whole of universe case" - a case where there was no selection of the subscribers to be included in the directory and where the directory permitted only one mode of arrangement of the factual information and only one mode of expression of the individual entries. In such a case, anyone exploring the same universe would discover the same factual information and would, inescapably, produce a directory relevantly identical in form, as well as in content, to Telstra's (at [22]-[24]).
203 In Desktop, the originality of the compilation lay in the labour and expense of collecting the information to be compiled. The copyright attached to the Telstra directories by reason of that skill and labour and not because of the skill and labour of the manner of arrangement of the compilation. Lindgren J noted at [23] that, more commonly, there is some "scope for variance" in the manner in which the individual pieces of factual information are recorded, in the selection of the factual details to be compiled and in the arrangement of the compilation as a whole.
204 Unlike Desktop, different content and modes of expression and arrangement may be utilised for a television program schedule. A day's programs may commence at midnight or 6 am, the program may be in a 12- or 24-hour format and the number of days shown in advance may vary. The format may be horizontal or vertical. There exists a scope for variance in the manner of recording of time and description of title. Some columns may not be present in some guides. There is greater scope for variance in the recording of and choice of additional program information to be included. The additional program information and what is included in such information is not preordained. It is a matter of choice whether to include the fact of digital or analogue broadcast, censor rating, black and white or colour. There is the opportunity, here availed of by Ice, to change totally the synopses for each program. The IceGuide has significant differences of form and content.
205 Nine submits that adding information, albeit complex information and in quantity, does not avoid infringement. For the mere adding of information, that may be so. However, the submission does not take into account the fact that the adding of information may affect the compilation as a whole and the interrelationship of its component parts, so as to affect not only the quantity but also the quality of what it conveys. It is a question of fact and degree.
206 Recognising that copyright in this compilation is defined by the attributes of selection, expression or arrangement, Ice contends that the copyright subsists in the Weekly Schedule by virtue of each of those attributes. In the circumstances of this case it then follows, according to Ice, that infringement is assessed against each of the attributes of selection, expression and arrangement and, if one of these is missing or not preserved in the Aggregated Guides to which Ice has recourse, there can be no reproduction of the Weekly Schedule by Ice. If, by that submission, Ice submits as a general proposition that there is no infringement of a compilation unless each of the selection, expression and arrangement are reproduced, then that is inconsistent with Lindgren J in Desktop. While the attributes of selection, expression and arrangement have all been exercised in the creation of the Weekly Schedule, a taking of any one of those attributes may be sufficient to constitute the taking of a substantial part of the work as a whole, if the requisite skill and labour have been appropriated.
207 Further, it is not a question of saying whether the expression "skill, judgment and labour" is conjunctive or disjunctive. It is the correlation between what is being taken by the alleged infringer and what is original and thereby attracts protection under s 32 of the Act. If a work is sufficiently original so as to attract protection but skill and labour is only expended in one of those attributes, it is against that attribute that infringement is measured.
208 The connection between the particular form of skill and labour and the attraction of copyright protection was emphasised by Black CJ in Desktop at [6]. Justice Lindgren also noted the distinction between the labour and expense of obtaining the information, the necessary information for the arrangement and compilation and then of the actual making of the compilation. Nine is, like Telstra in Desktop, in the position of possessing the material for inclusion in the compilation because of the effort of collating the time, title, additional program information and the synopses to be compiled. That information is collated, however, not solely for the purpose of creating a literary work, the Weekly Schedule. The main purpose of the work done by Mr Healy and Ms Wieland and the others at Nine is to determine the Nine Programming - the order of programs to be broadcast. Having said that, it is also the case that the creation of the Weekly Schedule involves sufficient skill and labour so as to be an original literary work in which copyright subsists and that is not disputed by Ice. Nine's skill and labour in determining the Nine Programming resulted in the broadcast of those programs and the information for inclusion in the Weekly Schedule. Ice does not engage in broadcasting. Ice did not take the broadcast information in the Weekly Schedule to create the amended Templates for Sydney. It obtained that information by watching television and writing down the time and title of Nine programs, creating its own additional program information and synopses and amending its templates by reference to the Aggregated Guides. The question is not whether Ice took the skill and labour which is expended in programming decisions but whether it took the skill and labour of creating the copyright work. For example, Mr Healy or Ms Wieland may spend a great deal of time, skill and labour in deciding whether to purchase a new series from the United States, negotiating the purchase and deciding the timeslot in which it should be broadcast to maximise viewers. Once that decision is made, the time and title of that program is determined for the purposes of the Weekly Schedule. The skill and labour expended for the purposes of maximising the benefit of the broadcasting is not coextensive with that expended for the purposes of the creation of the copyright work.
209 The compiler of the Weekly Schedule of Nine programs is not necessarily the same person who determines the programming, the time and tile of the programs and is the author or originator of the facts recorded in the compilation. Once the programs are broadcast, the time, title, nature and content of those broadcast programs are available to the public. A person wishing to compile a schedule of those broadcast programs by viewing them and recording all of that information does not, in the making of that second compilation, appropriate the work of the creator of the record of the programs in the Weekly Schedule. It is similar to a speech and the report of the speech (Walter v Lane [1900] AC 539, cited in Desktop at [68] per Lindgren J); they are two different things and the authors are relevantly two different persons.
210 The skill and labour of creating the Aggregated Guides accessible to the public, including Ice, is in the content and the form in which the information is there presented. The Aggregated Guides are separate compilations of which the Nine programming information or "Nine Listings Content" represents only a part. They are created by the independent skill and labour of the Aggregators and do not reflect the precise content and arrangement of the Weekly Schedule. Nine does not claim copyright in the Aggregated Guides but says that it retains copyright in so much of those guides as contains the Nine Programming, which was contained in the Weekly Schedule. Ice does not appropriate the skill and labour expended by Nine in arranging the format or the content of the additional program information and the synopses. It created its own templates. It accesses the Aggregated Guides. Ice adopts its own format and provides its own content. It amends the time and title information for some programs that it has not "predicted" correctly. It utilises its own skill and labour, via its software system, to insert that information into the IceGuide. It does not take the skill and labour attributable to the form of the compilation. It does not take sufficient of the skill and labour of the content of the Aggregated Guides, let alone the Weekly Schedule, to constitute a substantial part.
211 In order to ascertain whether the taking of the slivers of time and title information, individually and cumulatively for a given week constitutes the taking of a substantial part of Nine's copyright work as it forms part of the Aggregated Guides, a number of factors must be taken into account:
· Ice does not access the Weekly Schedule but the Aggregated Guides.
· The time and title information of the Weekly Schedule does not include the information the subject of the Late Change Notices.
· As Ms Wieland stated, prime-time movies are never included in the Weekly Schedule and new programs may not be included. They are the subject of Late Change Notices.
· Strip programs may be scheduled for broadcast in the same timeslot by Nine for months and sometimes years.
· Programs with episodic series are also often scheduled in the same timeslots for extended periods of time. As already noted, for these programs, the time and title information may be of less qualitative importance than the synopses.
· Each compilation, the Weekly Schedule, the Aggregated Guides and the IceGuide includes the additional information and the synopses.
· Ice refers to the whole of the time and title information in the Aggregated Guides but only takes "slivers" of it. Those "slivers" do not bear substantial importance in relation to the originality of the Weekly Schedule as a whole.
· The synopses are, for each of the Weekly Schedule and the IceGuide, original works with commercial importance.
· The skill and labour engaged in by Nine for the creation of the time and title information is skill and labour that is expended for the purposes of broadcasting and as preparatory skill and labour for the purposes of the compilation.
· The skill and labour expended and the originality of the Weekly Schedule relate not only to the information contained in that schedule but also to the arrangement and form of the information.
· Ice does not take the arrangement or form.
· Ice expends its own skill and labour and original work in the creation of the IceGuide which is not derived from Nine's copyright. This includes the creation of the templates, the software to amend the guide, the decisions on what to include in updating and amending the guide, the writing of the synopses and the presentation of the data.
212 In assessing what Ice does take as a matter of fact and degree, I am of the view that it does not represent a substantial part of the Weekly Schedule. It follows that Ice does not reproduce a substantial part of the Weekly Schedule as it appears in the Aggregated Guides or a substantial part of the Aggregated Guides in the course of making and updating the IceGuide.