Nine v IceTV


In the early 2000s, I invented a digital video recorder which allowed TV viewers to schedule the recording of programs by clicking on the titles in an on-screen electronic program guide (EPG).  What set this apart from other digital video recorders at the time was that it could optionally automatically pause recording during commercial breaks, so that when the program was replayed, there were no ads.

I realised from the outset that the television networks would not be happy about this and thought long and hard about what legal steps they might take to stop IceTV from succeeding. It seemed that the only risk was that if IceTV adapted the broadcasters’ written program guides for use in its EPG, there could be a copyright issue.  To address this risk, I ensured that IceTV created its own original EPG without any copying from other sources.

Nevertheless, in 2006 Nine Network Australia Pty Ltd sued, claiming that IceTV had infringed its copyright TV schedule by reproducing the program time, title and date of broadcast of Nine’s shows.

The matter was heard in the Federal Court, with John Ireland QC appearing for IceTV. He presented evidence that IceTV’s EPG was created from scratch by Mr Rilett, who was employed for this purpose, without reference to anyone else’s schedules. In her judgement, Nine Network Australia Pty Ltd v IceTV Pty Ltd [2007] FCA 1172

Bennett J descibed the process in these terms:

“Mr Rilett watched television for approximately three weeks. He described this exercise as ‘torture’. He kept a notepad by the television and recorded by hand details of the programs screened including name, channel, day of broadcast, start time, sometimes the duration, classification and whether the program offered closed captions, widescreen and/or sometimes high definition (‘the Notebook Guide’). Mr Rilett continued watching television until he had noted the programs for a 24-hour period for each day of the week for the three commercial free to air networks. While creating the Notebook Guide, Mr Rilett also researched and wrote descriptions of the programs into a descriptions list. This required him to have recourse to Internet search engines and websites to find information about the content of the programs. Mr Rilett says that he did not consult published television guides for those descriptions.”  

Bennett J found there had been no copyright breach, and dismissed Nine’s claim: Nine Network Australia Pty Ltd v IceTV Pty Ltd [2007] FCA 1172 

Nine appealed to the Full Federal Court, which overturned the first instance decision: Nine Network Australia Pty Limited v IceTV Pty Limited [2008] FCAFC 71 The Full Court found that IceTV had appropriated Nine’s “skill and labour” which “gave the compilations their character as original literary works”.

IceTV was granted special leave to appeal to the High Court, which took the opportunity to review the fundamental purpose of copyright law. The High Court ruled that copyright should protect original expressions of ideas, not the ideas themselves. Merely assembling the facts of which program would be shown at what times did not create an original work capable of copyright protection. Previously, the law had been that application of significant skill and labour, or “sweat of the brow”, was sufficient to attract protection. This landmark ruling,  IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14, significantly changed the course of Australian copyright law.