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This article critically considers the treatment of originality by the High Court in IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 239 CLR 458 and the Federal Court in Telstra Corp Ltd v Phone Directories Co Pty Ltd (2010) 264 ALR 617; [2010] FCA 44, and the implications those judgments have for compilation copyright under Australian law, particularly compilations of facts. These cases significantly diminish, if not destroy, copyright subsistence in factual compilations in a fundamental reversal of pre-existing law. The cases demonstrate a radical shift away from the acceptance in Desktop Marketing Systems Pty Ltd v Telstra Corp Ltd (2002) 119 FCR 491 of “mere sweat of the brow” as a qualifier for originality, and reject as irrelevant, skill and effort in selecting content which is “anterior” to the expression of the work. The primary focus of the article is on the IceTV test that skill and effort be “directed to” the expression of the work. The test is applied to different examples of skill and effort involved in selecting, collecting, verifying and arranging the content of compilations, and this article argues that the test was incorrectly applied in both IceTV and Phone Directories. The article concludes by contending that the lacuna in protection, while prompted by sound policy objectives, is undesirable in leaving considerable investment and effort unrewarded, and should be remedied by Parliament.

When Sweat Turns to Ice: The Originality Threshold for Compilations Following IceTV and Phone Directories