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IP lawyers face U-turn after High Court ruling

IP lawyers face U-turn after High Court ruling

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The High Court decision this week that saw IceTV come out triumphant against Nine Network's copyright claims represents a U-turn in the way future cases will go forward, an intellectual property expert says.

The High Court decision this week that saw IceTV come out triumphant against Nine Network’s copyright claims represents a U-turn in the way future cases will go forward, an intellectual property expert says.

The case has placed boundaries around the previously complex area, said Tony Watson, Middletons partner. “It seems to have been a very vexed area, but the High Court has summarised it all quite succinctly,” he said.

Watson said the decision would not only change the way IP lawyers would work on such cases, but it provided “clarity to people like me who are in this area trying to wade our way through a very complex morass of previous cases going back centuries in the UK and Australia”.

The High Court ruled IceTV’s time and title information did not infringe Nine’s copyright. After a three-year court battle, three judges were of the view that the originality of Nine’s weekly schedule lay not in the time and title information, but in its selection and presentation. The Court said that setting down program titles in particular time slots required only modest skill and labour.

The High Court decision overturns a Full Federal Court ruling last year that IceTV had not infringed on Nine’s copyright.

In agreeing to hear IceTV’s appeal, High Court judge William Gummow sent a clear message to the teams of IP lawyers before him, claiming the High Court intended to use the appeal to conduct a comprehensive review of the copyright treatment of factual compilations.

The case touches on the issue of anti competitiveness, Watson said, as well as whether you can protect effort. “I can see both side of the argument … for the person whose done the hard yard and collected the information being miffed that someone can come along and take it.

“And at the other end of the spectrum you have people asking ‘why the hell would copyright law protect the fact that Here’s Humphrey is on at 9am in the morning?’. ‘Why should we give any protection to the fact that the Southern Aurora is going to leave Spencer Street at 8am in the morning? That’s ridiculous the world’s gone mad’,” Watson said.  

For Watson himself, the decision will impact an upcoming trial in which Telstra and Sensis are suing his client. “It was due to go to trial in December but the trail date was vacated when it was said that IceTV had gone to the High Court, which was likely to deliver a decision early this year. So it’s going to have a substantial impact on that case. And it will impact other cases in the country where people are being sued for data compilations.”

This week’s decision runs contrary to previous case law. The Full Federal Court authority in Telstra v Desktop Marketing [2001] FCA 612 had suggested copyright would subsist to protect so-called “sweat of the brow” in compiling information in a particularly arrangement. But the recent High Court decision rejected that there was any skill and labour directed at the particular form of expression produced by IceTV.

Deacons lawyers Marie Wong and Marianne Saba put together a legal update for clients today, based on the High Court decision. “Whilst the decision may be hailed as an open door for copyright users to repackage database information, ultimately, whether such activity constitutes copyright infringement will require careful analysis,” they reported.

Middletons partner Watson said the decision is trying to balance that fine line between protecting effort, “and yet it’s the touchstone of copyright law is that copyright law doesn’t protect ideas or information”.

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