The scope of copyright protection afforded to compilations remains a vexed issue in Australia.

In a judgment handed down on 6 June 2014, which rejected an application by Sports Data Pty Ltd for an interlocutory injunction against Prozone Sports Australia Pty Ltd, Justice Wigney of the Federal Court considered (and elucidated on) the principles articulated by the High Court in its seminal IceTV decision. Justice Wigney's decision, although in the context of an interlocutory application and itself of limited authority, nevertheless assists in further clarifying the jurisprudence in this area.

Facts in brief

Sports Data was the official supplier of statistics to the National Rugby League Ltd (NRL) from 2002 to 2013. During its tenure, Sports Data worked with the NRL to create a data template that identified events that took place during an NRL match (referred to in the judgment as 'input criteria'), and organised the different data templates into a table compilation to capture data for statistical analysis.

At the end of its agreement with Sports Data, the NRL entered into a tender process for a statistics provider from 2014 onwards. Sports Data's bid for the NRL contract was unsuccessful. Instead, at the end of the tender process, the NRL entered into an 'in principle' agreement with Prozone. In the course of their negotiations, the NRL and Prozone worked on developing Prozone's own Rugby League 'coding template' by making its existing template more NRL-specific.

Sports Data alleged that, in developing its coding template, Prozone had access to and copied Sports Data's data template and input criteria. Sports Data sought interlocutory orders to restrain Prozone from using, copying or dealing with its confidential information and infringing the copyright in its data template and input criteria.

Sports Data's application was refused.

Confidential information

Justice Wigney compared Sports Data's input criteria and the various iterations of Prozone's event template made during its negotiations with the NRL, and found that a preliminary inference could be made that Prozone had been provided with some information concerning Sports Data's input criteria.

However, in the Court's view, Sports Data was unable to make out a reasonable case that its confidential information would, in a final hearing, be found to have been misused. This was because:

• the information did not have the necessary quality of confidence: Sports Data argued that its database was confidential because it contained a notice asserting that it contained confidential information. However, this notice was only available when accessing the 'native' version of the table; it did not appear when the table was accessed on Sports Data's website, nor were the NRL clubs with which it was shared given sufficient notice that the table was confidential.  In the Court's view, this was not sufficient to give the information the necessary quality of confidence.
• the information was not received in circumstances imparting an obligation of confidence: Justice Wigney found that there was no evidence that Prozone had received the information knowing that it was Sports Data's information or that it was confidential. Sports Data argued that Prozone was put on notice that it was using Sports Data's confidential information but this was rejected by Justice Wigney given the period of time that had elapsed between Sports Data becoming aware that Prozone was using its information, and when the notice that the information was confidential was sent.
• there was no misuse of confidential information: Sports Data classified its 'confidential information' as the compilation of the different input criteria in its database tables as a whole. Sports Data was unable to prove that Prozone received the entire compilation of Sports Data's database tables or any other complete list of Sports Data's input criteria. Because Sports Data classified its confidential information as the entire compilation, Sports Data was unable to prove that Prozone had made unauthorised use of the compilation, although there was evidence that Prozone had used some of the information contained in the compilation.

Copyright

Sports Data had some difficulty in precisely identifying the relevant work over which it claimed copyright protection. The argument it eventually adopted was that the relevant work was four tables extracted from its larger database table.

Subsistence

Sports Data argued that the four tables identified by it as the relevant work were authored by its employees and, as a compilation, fell within the definition of a 'literary work' under the Copyright Act 1968 (Cth).  The work was found to be original because sufficient intellectual effort had been exercised in the way that the events were described, selected and arranged in the tables.

Infringement

The analysis of whether Prozone had reproduced a substantial part of Sports Data's copyright work was complicated by Sports Data's identification of the relevant work. Justice Wigney expressed dissatisfaction at being asked to consider whether a substantial part of a work had been taken, where the relevant work was itself an extract of a larger work. His Honour noted that this issue may have to be addressed at the final hearing and that he had 'difficulty in seeing how it is legitimate to identify a relevant copyright work in this way'.

Although it appeared that Prozone had received some of Sports Data's information and used it to develop its own event templates, there was no objective similarity between the two works to enable Justice Wigney to conclude that a substantial part of Sports Data's work had been reproduced. The identification of the work as a compilation was relevant to this finding, because substantial similarity in the selection, structure and arrangement between two compilations is necessary for a finding of copyright infringement.

Things to watch for

In denying Sports Data's application for an interlocutory injunction, Justice Wigney emphasised the importance of accurately identifying the relevant work, both in the context of alleging misuse of confidential information and copyright infringement. This should be noted by those seeking to bring, or to defend, an action on similar grounds. Justice Wigney's judgment also applies the principles of IceTV regarding the recognition of copyright in compilations in a straightforward and pragmatic way, helping to consolidate the jurisprudence on this topic in Australia.

An issue to watch if this matter proceeds to final hearing will be how Sports Data's attempt to confine the scope of the relevant copyright work, by defining it as a smaller part of a larger work, is addressed by the Court.  Justice Wigney's hypothesising about whether it was legitimate to identify the relevant copyright work in this way is somewhat surprising – many would think that it was fairly settled law that this was not legitimate or permissible.  Any final finding on this point will, however, depend on the evidence and how it is argued.