Databases and Australian Copyright Law
posted by Jacqueline Lipton
I’ve just been reading last month’s decision of the High Court of Australia in IceTV v Nine Network. (The High Court is Australia’s equivalent of the U.S. Supreme Court.) Here’s where Australia apparently rejects the “sweat of the brow” test for copyright in Australia, and takes an approach more akin to the Supreme Court’s decision in Feist. The Supreme Court in Feist had famously rejected the sweat of the brow test for copyrightability of databases – in that case an alphabetical listing of names, addresses, and telephone numbers in a white pages telephone directory. The Court explained that to attract copyright protection there must be sufficient originality in the selection, organization or arrangement of database contents to satisfy copyright’s originality requirements – pure hard work or expenditure of resources would not be enough. Many European countries take the same view. Australia was one of the few countries that still subscribed to the idea that copyright was appropriately granted for such hard work. Australian courts as recently as 2002 had espoused this notion with respect to a white pages telephone directory.
Britain, also, extends copyright protection to unoriginal databases provided that sufficient labor or resources have been expended in their creation – see Copyright, Designs and Patents Act, Eng. (1988), s. 3A(2).
The new IceTV decision turns past Australian practice on its head, but in a somewhat roundabout way. The High Court does not literally say that it is impossible to claim copyright based on “sweat of the brow” and it does not specifically overturn the Full Federal Court decision in Telstra v Desktop that allowed Telstra to claim copyright in a white pages telephone directory. However, it holds that in the context of an infringement action, there is no infringement – ie no “substantial taking” of protected content – where the defendant has only extracted and reproduced unoriginal facts even if those unoriginal facts represent the commercially valuable part of the database in question. In the IceTV case, the database consisted of free-to-air television programming information that Channel 9 Australia was trying to keep proprietary. IceTV provides a service that reproduced television programming information from Channel 9 and other channels in order to allow users to program their digital video recorders to record and time-shift programming, and to skip commercials. The High Court found in IceTV’s favor that there was no copyright infringement (although not going as far as literally saying that Channel 9 did not hold copyright in its programming information as the court was not specifically asked to address that question).
This case is likely to have wide-ranging implications for businesses that provide various forms of schedules and directories in Australia, particularly as Australia does not appear to have a tort equivalent to the INS “hot news” tort (to the extent that it survives in the United States). In this vein, I suppose it might have been nice if the High Court had taken up the Australian Digital Alliance’s request in its amicus brief to reconsider Telstra v Desktop. But at the end of the day, it seems like the UK is now out there on its on with regard to the copyrightability of unoriginal databases.