IceTV: the idea / expression dichotomy in the Full Federal Court

Copyright applies to expression. The ideas which underlie the expression are not protected by copyright.
In a literary work, the idea of the protagonist being awoken by a knock is not protectible, but the expression of that idea is: “While I nodded, nearly napping, suddenly there came a tapping, As of some one gently rapping, rapping at my chamber door.”1) Nobody can prevent subsequent authors from using the idea, but copying the way in which it is expressed is the exclusive right of the author for a limited time.

This becomes a little more difficult when we are dealing with facts. The Bureau of Meteorology may collate weather forecasts for a town, and present them to citizens:

>Thursday Fine Min 15 Max 24
>Friday Fine Min 16 Max 26
>Saturday Mostly fine, possible shower or storm Min 15 Max 29
>Sunday Mostly fine, possible shower or storm Min 18 Max 28
>Monday Mostly fine, afternoon shower or storm Min 17 Max 27
>Tuesday Mostly fine Min 17 Max 28

This table is a protectible copyright work. It is a compilation of information which originates from the BoM. The individual facts, on the other hand, are not copyright. It is not an infringement for me to tell you that on Saturday, it is likely to be fine, with a maximum of 29 degrees Celsius and a possibility of a shower or a storm. So what is left for the copyright to protect? It protects the way those facts are expressed. In this case, copyright protects the table and the layout. If the language were more expressive or flowery, it would protect the original expression in the forecasts. As it is not, there is little other way in which those facts could be expressed, and copyright will not grant a monopoly on the only reasonable way in which those facts can be expressed.

At least, this is the way I believe copyright ought to work. There are sensible reasons for protecting expression, and there are sensible reasons for refusing to protect mere information. But since Desktop Marketing Systems v Telstra, the Federal Court of Australia has eroded the distinction between ideas and expression and has instead protected the labour and skill that goes into generating the underlying ideas and facts. On this reasoning, because it requires significant effort to check the names, addresses, and phone numbers of many individuals and businesses, Telstra is granted a monopoly on the telephone directories it produces. In that case, Desktop Marketing was prevented from copying the information from the directories and presenting it in a different way.

In Channel Nine v IceTV, the same Full Federal Court determined that because it requires significant effort to determine which television shows will be broadcast in which timeslots, Channel Nine would be granted a monopoly on the television schedules it produces. Ice would accordingly be prevented from taking the facts within those schedules ('Days of Our Lives will be broadcast on Monday at 2pm') and displaying them in a different manner.

In our first example, this would mean that the Bureau of Meteorology ought to be granted a monopoly on the laborious predictions it makes, such that I would not be able to write here that Monday should be mostly fine with an afternoon shower or storm (or at least, I would not be able to enter that information into a weekly weather forecast).

I believe that there has been a fundamental misstep in the reasoning of the Full Federal Court in not differentiating between the labour which is exerted in generating information and the labour which is exerted in generating expression. It may well be the case that the BoM needs excludability or public funding in order to generate the forecasts it produces. It may well be the case that Telstra needs excludability or public funding in order to maintain an accurate list of names, addresses and phone numbers. It may well be the case that Channel Nine needs excludability or public funding to go through all the effort that is required in order to determine which programs it should broadcast in which timeslot. These are not, however, copyright interests. Copyright comes later, when each of these parties chooses to express the information is has gathered or created in a tangible form. It does not matter whether the information was created or gathered by the same person who is expressing it; there is still a fundamental difference between an idea and the expression of an idea.

The Full Federal Court in Desktop Marketing and IceTV has largely removed this distinction. The result is fairly gloomy for independent innovators. It is now very difficult in Australia to take information that has been publicly released and present it in another form. This is compounded by another lowering of the test for substantiality. Desktop Marketing involved wholesale copying, but IceTV only involved copying a small amount of information. The approach taken by the Full Federal Court in IceTV looks at the importance of the information to the whole work, and not the importance of the expression. A small taking of a few pieces of important information accordingly amounts to a substantial reproduction, even if the majority of information was collected through non-infringing means. The Full Federal Court in IceTV did not look at the way in which the information was presented, merely that it was taken. Because there are very few ways in which one can say that 'Days of Our Lives will be broadcast on Monday at 2pm', this effectively means that Nine gains control of all such expression.

This is an unfortunate state of affairs and really limits the ability of innovators to compete and even the ability of individuals to express themselves. Technically, this means that I can't post here to tell you when the next episode of Chuck is going to air, assuming that I gathered the information from a licensed source and the judges felt it was 'important' enough to form a substantial part of the weekly schedule. It also means that we can't use free software PVRs, because the licensed sources don't make the information available in the format that we need (presumably to cut off competition).

[ Edit: Ok, it's unlikely that me telling you what time Chuck will be airing will be substantial enough. But there are certainly still speech implications. Can I tell you the times for the four most important programs for each day? Can I tell you what time a particular program will be playing each week for a season? If I can, why can't IceTV? ]

The High Court has agreed to hear the appeal from IceTV. We can only hope that the High Court is willing to examine the effect that such a low standard for originality and substantiality has on the ability of everyday Australians to express themselves, to innovate, and to compete in the digital economy.

More information and commentary:
* House of Commons: http://www.cyberlawcentre.org/unlocking-ip/blog/2008/08/icetv-granted-special-leave-to-appeal.html
* Kim Weatherall: http://www.lawfont.com/2008/05/09/all-our-program-guides-are-belongs-to-us/ and http://www.lawfont.com/2008/05/12/more-on-the-icetv-judgment/
* Slides from David Linsday: http://www.copyright.asn.au/events/past_events/f08n03.htm
* Peter Black: http://www.freedomtodiffer.com/freedom_to_differ/2008/05/nine-network-au.html
* William Patry: http://williampatry.blogspot.com/2008/05/icetv-iced-kangaroos-hopping-mad.html
* Peter Vogel: http://vogelross.com.au/vrblog/?p=32
* Warwick Rothnie: http://ipwars.com/2008/09/02/icetv-transcript-is-up and http://iblog.ipwars.com/C688984015/E20080518104141/index.html and http://ipwars.com/2008/08/27/icetv-in-the-high-court/ (noting the adage 'what is worth copying is worth protecting')

1)
Edgar Allan Poe, The Raven, 1845.