Simon Rumble expresses concern that the ruling in IceTV may be far-reaching indeed:

To my non-lawyerly eyes, this judgement seems rather far-ranging. It seems that basically any collection of data can now be covered by copyright, no matter how you recreate it. …

For example, let’s say I wanted to set up a web site that allows people to compare phone plans. I use publicly-available information about the various suppliers’ pricing to build a database that is looked up to recommend a specific plan from a specific provider. This would now seem to be a breach of copyright. I work with people who design phone plans, and I can tell you it’s a very creative process — though perhaps not for the right reasons.

My response to that would be – not necessarily. Actually, the cases where people have tried to use copyright to prevent this kind of ‘comparison’ site go way back to the early days of the Internet. In the US, they tend to fail on ‘fair use’. In Australia, we don’t have fair use, but I think there are at least two safety valves that mean this isn’t going to be infringement:

  1. First, you may not end up copying enough to be infringing copyright. Let’s say there’s a whole mobile phone plan. Let’s say you extract a few key items: price of phone, price per minute, connection fees, timing. That’s a whole lot less than the whole plan. Whichever way you look at it, you always have to copy a substantial part of the copyright work to infringe. In the IceTV case, the copyright work was the whole weekly schedule. I think the court’s assessment of whether a substantial part was taken is open to question in IceTV, but the phone case is another case, that would be assessed on its own facts. There’d be serious doubts whether you copy enough;
  2. Second, even if you did copy enough, there’s a fair dealing defence for ‘criticism and review’. If you are specifically reviewing the various phone plans, with a view to making a recommendation on which are the best – I think you’re criticising and reviewing. Sure, you’re not reviewing the literary merits, but that’s not necessary, as a long line of copyright cases establishes.

So don’t start panicking yet.

5:07 pm - posted by . Categories: Aus , Copyright
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