In Nine Network Australia Pty Limited v
IceTV Pty Limited  [2008] FCAFC 71 the Federal Court of Australia Full Court allowed Nine’s appeal against the original decision (discussed here) which permitted Ice to reproduce Nine’s
TV schedules in electronic form.

The Full Court decided that Ice TV had infringed Nine’s copyright in
its television program schedules by indirectly copying  a substantial part of the television guides.

On the issue of substantiality of the copying the Court decided:

Ice’s use of time and title information, derived
ultimately from the Weekly Schedules, involved the reproduction
of more than a
slight or immaterial portion of Nine’s copyright work…Ice appropriated
many pieces of the time and title information, apparently on a
weekly basis. It did so in order to create something commercially
valuable out
of templates that otherwise would have had no commercial value to it…When the quality of the material taken by Ice is considered, the
substantiality of the part taken becomes even clearer.  Ice
took, via the
Aggregated Guides, precisely the pieces of information that reflected the
exercise of skill and labour by Nine in determining
the program for a particular
day or other period.

On whether there was a link between the time and title
information in IceGuide and Nine’s Weekly Schedule the Court said:

Ice used Nine’s copyright work by indirectly
copying time and
title information from the Aggregated Guides.  Ice could not fulfil the
requirements of its business model unless
IceGuide incorporated accurate and
up-to-date details of Nine’s programming schedule…Ice in fact updated and confirmed
the
accuracy of its database by accessing, on a regular and systematic basis, the
Aggregated Guides.  Ice took time and title information
from, and checked other
details against, the Aggregated Guides.

For an analysis of the decision see Kim Weatherall’s comments here.