Case: Nine Network Australia Pty Limited v IceTV Pty Limited [2008] FCAFC 71
Outcome: considered
The Full Court allowed an appeal by the applicant ('Nine') in relation to a claim of infringement of copyright in Nine's television program schedules by the respondents ('Ice'), ( Nine Network Australia Pty Limited v IceTV Pty Limited [2008] FCAFC 71). The Full Court remitted the proceedings to me as the primary judge ' for hearing and determination consistently with these reasons for judgment ' (at [129]) . Briefly, the matter related to copyright in Nine's television program schedules and the use by Ice of Nine's information in its subscription based electronic program guide for television (the 'IceGuide'). 2 The parties have presented different versions of the appropriate orders to be made, each said to reflect the Full Court's reasons. Some of the differences between the orders have been resolved but others have not. I will make the orders that are agreed and consider in these reasons only those orders that are not agreed. As Nine was the successful party in the appeal, it is appropriate that I have regard, initially, to the orders that Nine proposes and the reasons advanced for the form of those orders and then consider Ice's objections and the form of orders proposed by Ice. 3 A form of orders as proposed by Nine that takes account of those orders that are agreed and highlights those disputed by Ice is as follows: In these orders the following terms have the following meanings: Additional Program Detail Information means any one or more of the following details: (a) episode titles; (b) episode numbers; (c) information about the currency of programs; (d) information about the formats in which programs are to be broadcast; (e) closed captioning information for the hearing impaired; (f) program classification information; and (g) consumer advice. Aggregated Guide means the published television program guide containing information for all free to air channels, including the applicant's channels, that is produced by any of the Aggregators where the guide has been created, in part, by using one or more Nine Weekly Program Schedules provided by the applicant to the Aggregator. Aggregators means HWW Limited, eBroadcast Australia and Pagemasters Pty Limited or any publisher of any other aggregated television guide (printed, electronic or otherwise) whose publication includes the Nine Weekly Program Schedule under licence from the applicant. IceGuide means the first respondent's television program schedules, whether known by that name or otherwise, and includes all versions of the IceGuide including IceGuide Widget and IceGuide PIMP. IceTV Database means the first respondent's database used in the preparation of its IceGuide. Nine Weekly Program Schedules means the applicant's weekly television program schedules which comprise: (a) Nine Program Time and Title Information; (b) Additional Program Detail Information; and (c) Nine Synopses. Nine Program Title and Time Information means the respective associated dates, titles and intended starting and finishing times for the transmission of the applicant's respective television programs. Nine Synopses means descriptive information about individual television programs included in a Nine Weekly Program Schedule. THE COURT DECLARES THAT: 1 The applicant is the owner of the copyright in the Nine Weekly Program Schedules. 2 The first respondent has infringed the copyright in certain of the Nine Program Schedules, by: (a) reproducing in a material form; (b) authorising the reproduction in a material form of; (c) communicating to the public; substantial parts of those Nine Weekly Program Schedules, without the licence of the applicant. THE COURT ORDERS THAT: As against the first respondent 3 The first respondent, whether by itself, its servants or agents or otherwise, be permanently restrained from infringing copyright in any of the Nine Weekly Program Schedules by: (a) reproducing in a material form; (b) authorising the reproduction in a material form of; (c) communicating to the public; or (d) authorising the communication to the public of, the whole or a substantial part of any Nine Weekly Program Schedules (whether made before or after the date of the making of this order), without the licence of the applicant.