The High Court will soon hand down a decision that will shed light on the status of information compilations under copyright law.
The High Court appeal is the final battle in a three-year war between IceTV and the Nine Network about whether IceTV - a free, electronic television programming guide - breached Nine's copyright by reproducing its programming schedule.
Last May, the full Federal Court -overturning the first instance decision of Justice Bennett - found in favour of Nine, holding that there was copyright in Nine's programming schedule and, therefore, that IceTV was in breach. However, IceTV took the matter further and an appeal was heard by the High Court late last year.
The Federal Court's decision in favor of Nine was in line with its earlier decision in Telstra Corporation Limited v Desktop Marketing Systems Pty Ltd  FCA 612 where it held that copyright existed in date compiled in a telephone directory.
However, despite that finding, Middletons partner Tony Watson explained that copyright is still a controversial issue which is arising in a broader range of circumstances as technology is being increasingly used as a platform to reproduce different data compilations.
"There are a fair number of commentators who think Desktop Marketing wasn't right," Watson said. "At the time [Desktop Marketing] sought leave to appeal to the High Court and the High Court refused, and I assume at the time the High Court thought the law in the area was pretty set, and that it [wasn't] a matter of sufficient public interest to warrant taking it ... But now that law is being extended to TV programs and train timetables ... so the High Court is considering that this is actually a matter of significant public interest."
Watson explained that the position in Australia stands in contrast to the position in the US. In Feist Publications v Rural Telephone Service Co., 499 U.S. 340 (1991), the US Supreme Court held that a telephone directory lacked sufficient originality to warrant copyright protection, despite the fact that effort and resources have been expended to compile it in a particular way.
"It's that dichotomy between someone trying to protect information as opposed to a compilation of information - that's where the tension lies," Watson said.
The High Court's decision, which is likely to be handed down any day, will have significant consequences for organisations - across many fields - which seek to profit from reproducing data compilations.
"If IceTV is overturned by the High Court, it's likely that ... the valuable and useful bit of the directories would have no protection," Watson said.
- By Zoe Lyon