The High Court, the final court of appeal in Australia, decided to hear the appeal on August 26.
In the transcript, Judge Gummow indicated that the Court intends to go back to basic principles by asking counsel "to deal with this matter without any reticence in starting at the bottom, so to speak".
Since 2005 IceTV has produced an electronic programme guide that allows viewers to select the programmes they want to record in advance, using a personal video recorder.
In 2005 Nine Network, one of the largest terrestrial channels in Australia, claimed that IceTV was infringing its copyright by reproducing the programme schedule which Nine Network sends to licensed aggregators
IceTV argued that it was not using a substantial part of Nine's programme schedule, as it uses its own research to predict which programmes will be scheduled.
In August last year Justice Bennett found in favour of IceTV, stating that the company used only "slivers of time and title information" and "does not reproduce a substantial part of the Weekly Schedule in so doing".
Nine Network appealed, and a full bench of the Federal Court reversed the decision on May 8 2008. Michael Williams, a partner of Gilbert + Tobin, which acted for Channel Nine in the case, described the legal action as "a classic case of indirect copying".
Williams told Managing IP that a key part of the full Federal Court decision is that it demonstrates that "very small quantities of material, where they are very important, can amount to a substantial part".
But IceTV argued in its appeal to the High Court that the Full Court of the Federal Court had placed too much emphasis on the importance of time and title elements which are "not original in the copyright sense".
In the transcript of the hearing, Judge Gummow stated that the compilation of the TV guide was "a much humbler form of enterprise" than a book. Gummow also stated that the US Supreme Court case Feist Publications, Inc, v Rural Telephone Service Co "conceivably could underpin an appraoch to the notion of substantiality at the later stage in our law".
In that case Feist, a publisher of telephone directories, had copied information from Rural's own telephone directory. The Supreme Court ruled that the information contained in the directory was not copyrightable and that no infringement existed.
JM Ireland QC argued for Ice TV, instructed by Bartier Perry. A J L Bannon argued for Nine Network and was instructed by Gilbert + Tobin.
