Case: Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273
Outcome: cited
In determining the subsistence of copyright, it is necessary to consider works such as anthologies and compilations as a whole ( Desktop at [99], [152] and [160] per Lindgren J; Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273). In Ladbroke , for example, an argument that copyright attached to individual components of the compilation was rejected by the House of Lords (276-7 per Lord Reid, 284 per Lord Evershed, 285 per Lord Hodson and 291 per Lord Pearce). The relevant compilation was a fixed odds football betting coupon, issued weekly. Their Lordships said that the whole coupon, there considered in the context of a consideration of the originality of the compilation, was to be treated as a single compilation. 45 As noted, s 32 of the Act provides for the subsistence of copyright in original literary works. The test of originality is whether the work was not copied, but originated from the putative author ( Desktop at [160] per Lindgren J). Copyright in a factual compilation is infringed where a person reproduces the copyright work or a substantial part of that work. In this context, '[s] ubstantiality is...determined by reference to the originality of that part of the work taken by the alleged infringer ' ( Desktop at [409] per Sackville J). It follows that, while the subsistence of copyright in the Weekly Schedule is accepted, an understanding of the nature and extent of Nine's skill and labour of authorship of the Weekly Schedule is fundamental to the question of infringement. 46 The extent of an author's contribution to the making of a factual compilation is a question of fact and degree ( Desktop at [160]). In this case, there are two sets of skill and labour exercised by Nine and its employees in the creation of the Weekly Schedule. First, the skill and labour of selecting and arranging the programs to be shown on Nine to attract viewers to programs in the different timeslots and to meet competitors' programs. For the purposes of these proceedings, this is the "antecedent" or "preparatory" skill and labour in the sense discussed in Ladbroke at 287 8 per Lord Hodson and Desktop at [132] and [160] per Lindgren J, [371] and [409] per Sackville J. Secondly, there is the skill and labour of drafting the synopses, selecting and arranging the additional program information such as classifications and consumer advice and recording, weekly, all of the information into documentary form, the Weekly Schedule. 47 Ice accepts that copyright subsists in the Weekly Schedule by virtue of the skill and labour in the scope of selection of programs, the decision to move or replace existing programs, the adjustment of times, program changes, the mode of expression and in the arrangement of the information by Nine. The work of Mr Healy and Ms Wieland and their colleagues at Nine in preparing each Weekly Schedule is not in dispute. Each Weekly Schedule "emanates" from them ( Desktop per Sackville J at [396]). 48 Relatively little information about the preparation and inclusion of synopses by Nine was included in Nine's evidence. Nine devotes skill and labour to producing and preparing synopses for inclusion in the Weekly Schedule. It emerged in cross-examination that Mr Holman, Mr Forrest and occasionally Mr Healy draft synopses for inclusion in the Weekly Schedule. Synopses are also obtained from the producers or publicists for some programs. The synopses are entered into the Nine Database and change each week. They are reviewed by Mr Holman and Ms Wieland before publication of the Weekly Schedule. Ms Wieland may instruct Mr Holman to make amendments to correct typographical or grammatical errors, or to change the description of a program or episode. 51 In Desktop , copyright attached to the compilation by reason of the labour of collecting, verifying, recording and assembling the data and not by reference to the form of the compilation, the alphabetical manner of presentation of the data. The former but not the latter was what originated from the putative author (see, eg Desktop at [438] per Sackville J). In that case, a telephone directory of subscribers in alphabetical order did not permit selection in ordering or expression of the information. Nine submits that, similarly, it is the collocation of information in the Weekly Schedule that is protected. It is the selection of things to be shown in chronological order, as opposed to the order itself, that constitutes the relevant skill and labour to be protected. There must be copying and sufficient resemblance but in such a case, form is not important ( Desktop at [223] per Lindgren J). Nine relies on the fact that copyright protection is medium and technology neutral and that is provided for in the Act (eg, s 21(1A) and s 24). Nine submits that the mere input of material into a database cannot deprive the author of copyright protection. 52 The skill and labour involved in making a factual compilation is likely to vary in each case. As described by Ice, pieces of information are brought together; the selection of that information to the exclusion of other items and the association of pieces of information, one with the other in a line or table creates an intelligible relationship between the pieces of information. The usefulness of the pattern created by the compiler is achieved by the choices that were made and judgment exercised about the individual pieces of information and the relationship between them. There is sufficient skill, judgment and labour in the selection of information and in the mode of expression of the Weekly Schedule, in the presentation of the data after the preparatory work of program selection and arranging is done, to attract copyright protection in that arrangement and presentation. As will become apparent, there is scope for variance in the content of synopses, the selection of additional program information and the overall manner of presentation of the compilation as a whole. The detail of the underlying subject matter, the work in choosing the program for each timeslot is not relevant to the compilation once the "timetable" is prepared, much in the same way that the history of the rolling stock of a rail carrier is not relevant to a train timetable. 53 Infringement of a factual compilation is tested by reference to the interest which the copyright is intended to protect ( Desktop at [223] per Lindgren J). In Desktop , that interest was the labour and expense of gathering together in one place the details of all the members of the given universe of all telephone subscribers in a region the skill and labour in collecting, extracting and verifying the data compiled. Although the constituent parts of the resulting compilation of those names in alphabetical order are inevitably arranged in the same way, the compilation was thereby protected. 183 The originality of a compilation may lie in the selection or arrangement of the information. It also may reflect the skill and labour of gathering the facts. As already noted, in the present case, the Weekly Schedule reflects both. It is only the originality of expression that is relevant, not the originality of the idea the subject of the expression ( Donoghue v Allied Newspapers Limited [1938] Ch 106 at 110 per Farwell J). It must be determined whether the part that is taken is an essential or material feature of the whole work, regarded as a copyright work; that is, ' whether the part or parts taken represent a substantial part of the labour, skill and judgment of the author that made the whole work "original" ' ( Tamawood Ltd v Henley Arch Pty Ltd (2004) 61 IPR 378 at [55] per Wilcox and Lindgren JJ). As one should not dissect a work to determine if a part could be protected by copyright standing alone ( Ladbroke at 277 per Lord Reid), so it is inappropriate to dissect the work for the purposes of infringement. The correct approach is to decide whether the work as a whole is protected by copyright and then to determine whether the work or a substantial part of the work as a whole has been taken.