An Australian Copyright Revolution and its Relevance for UK Jurisprudence: IceTV in the light of Infopaq v. Danske

Abstract

The purpose of this paper is to consider the High Court of Australia’s decision in IceTV v Nine Network (2009) and its relevance for UK copyright jurisprudence, taking account of the ECJ's decision in Infopaq v Danske (2009). The starting point for that consideration is the principle expressed by the Court of Appeal in Higgs v R (2008), that UK courts may rely on the reasoning of Australian and other foreign decisions when the logic of those decisions makes them applicable. On its face, IceTV seems an important decision, and a likely source of future reasoning for UK courts. Among other things, this is because of the similarity between and shared origins of Australian and UK copyright legislation, the high degree of cross-fertilization which exists between Australian and UK copyright jurisprudence, and the centrality of the latter to the four IceTV judgments. Further, it is possible to extract from the High Court’s decision six unanimous copyright propositions, and two approaches to determining substantial part, including one which reflects early commentators' readings of Infopaq v Danske. On closer analysis, however, it is submitted that IceTV is likely to have less impact on UK jurisprudence than might at first be thought. This is because the views of the High Court on certain issues are difficult to reconcile with UK jurisprudence, and unlikely to be accepted by a UK court. Further, this is true notwithstanding Infopaq, the meaning of which early commentators may have misread.

Keywords: Intellectual property, copyright, reproduction right, originality, harmonisation, europeanisation