Case: Walter v Lane [1900] AC 539
Outcome: cited
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: &#8226; Ice does not access the Weekly Schedule but the Aggregated Guides. &#8226; The time and title information of the Weekly Schedule does not include the information the subject of the Late Change Notices. &#8226; 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. &#8226; Strip programs may be scheduled for broadcast in the same timeslot by Nine for months and sometimes years. &#8226; 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. &#8226; Each compilation, the Weekly Schedule, the Aggregated Guides and the IceGuide includes the additional information and the synopses. &#8226; 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. &#8226; The synopses are, for each of the Weekly Schedule and the IceGuide, original works with commercial importance. &#8226; 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. &#8226; 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. &#8226; Ice does not take the arrangement or form. &#8226; 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.