– from behind the Great Firewall of China

http://www.youtube.com/watch?v=XJBnHMpHGRY

http://www.telegraph.co.uk/news/picturegalleries/worldnews/8555247/Tiananmen-Square-massacre.html

Name:

Bécasse is well known in Sydney for its unique combination of culinary innovation with traditional tastes. After several tries and eventually booking a month in advance, G and I visited it for the first time – and it did not disappoint. The restaurant is located at the Druitt Street end of Clarence Street, a quiet location that is mere minutes from the hustle and bustle of Town Hall. At dinner time, the muted external decor makes the restaurant almost hard to spot amongst the half-lit low-rise office buildings and shuttered cafes – especially when one’s eye is drawn to the spectacular white stair case of the award-winning Alliance Française building across the street.

The understated ambience is continued in-doors – while the gentle light of the street lamp filters through the Romanesque arch windows, frosted glass makes it clear that the interior is a world away from the common street outside. Behind a heavy glass door and dark drapery, the restaurant is divided into three areas: a sunken area close to the kitchen, from which diners can watch dishes being plated at a counter; the entry-level area with a series of relatively small tables, generously spaced from each other; and an upstairs area for larger groups. The colour scheme tends towards the warmer end, with dark drapery accentuated here and there with mirrors and simple abstract art. The candle at the table (not, Cafe Sydney should note, a flickering light bulb) sits in a glass bowl of water and sprig of flower. G and I were seated in the entry-level section.

The menu is pricey, and I got the impression that most diners were there for an occasion of some kind. The menu offers the options of a la carte or degustation. The two of us chose the (carnivorous) degustation (as opposed to the vegetarian option) at $130 per person. Optional matching wines with every course is an additional $60 per person.

After some canapes and amuse bouche, here were the dishes we sampled:

Salad of marinated heirloom vegetables with sugar snap mousseline, black olive and lemon balm: beautifully arranged plate of simple vegetables, with subtle sauces that well-complement the natural flavours
Confit miso blue-eye and smoked scallop with sauteed cuttlefish, cauliflower and buckwheat: lightly sauteed seafood, almost sashimi-like; best part is the sauce. Toasted buckwheat adds a nice surprise
Forgotten vegetables slow cooked in smoking cedar with aged pork jowl, scratchings and jus gras: like a rustic pork dish, but with the pork reduced to a hint and the vegetables enlarged to become the main part. Presented with a slice of lit cedar wood.
Roast Palmers Island mulloway with king prawns, soubise puree and smoked crustacea emulsion: familiar taste of fish and prawn given new meaning by the sauce
Caramelised suckling pig and braised pork tail with roast parsnip and compressed apple: a deconstructed variation on a roast pork dish, with a bite of roast pork and a bite of braised pork
Daube of Blackmore’s full-blood wagyu shin with potato baked in ash, Jerusalem artichoke and jus Bordelaise: the ash-wrapped potato was an interesting taste; the fattiness of the wagyu was well-used
Orange and cardamon pannacotta with blood orange, beetroot and vanilla: a thin panna cotta covered with the intersecting textures and flavours of the toppings. Beautifully presented and a refreshing transition into the dessert courses
Banana creme brulee with salted peanut brittle and milk coffee sorbet: a deconstructivist interpretation of the creme brulee. Banana in creme brulee is a little rich and quite sweet, but combines well with the fairly salty peanut brittle
Zokoko 70% Bolivia chocolate and caramel ‘cadeau’ with organic vanilla and milk sorbet: the cadeau is a perfectly formed dome. The sorbet is surprisingly nice – and tastes very different to vanilla ice cream

We finished with tea and petit fours (included in the meal).

Conclusion: Quality food, at once adventurous yet familiar, perfectly managed production

Food: 9/10
Service: 9/10
Ambience: 8/10
Value for money: 7/10
Overall: 9/10

Travel tip #10: Swiss efficiency extends only as far west as the last German-speaking town.

French-speaking Geneva feels like an entirely different country. Street signs are in the familiar blue metal of Paris. Road directions are the same fat, black-on-white light boxes as those found in France. We’ve seen the last of our hauptbahnhofs – here it’s a gare. At the centre of the city stands – not a rathaus, but l’hotel de ville. On the square is the Notre Dame, and further down, the Opera (“deisgned by the same architect who built the Palais Garnier opera house in Paris!” enthused the young man at the tourist information centre). In a word, this is France.

With it comes the laissez-faire attitude of the French. In Zurich, jaywalkers are mown down like broken clocks. In Geneva, motorists and pedestrians go about their own ways, seemingly oblivious to each other, in an elegantly chaotic dance.

Geneva railway station is organised mayhem. Here, I saw my first late train since stepping on the Continent. Stations announcements went like this: “The 4:24 train to Prague is delayed by approximately 20 minutes. We apologise for any inconvenience caused.” “Attention passengers on Platform 15 waiting for the 4:36 train to Milan. This train will now be departing from Platform 18. Please make your way to platform 18″. Sound familiar? It was just like Strathfield station on a bad day. I’ll be honest – they did make me a little homesick.

When the delayed train finally arrived, the train was further delayed by people getting on and off the train – there were still people jumping on and off even as the train began moving away from the platform.

Old Geneva is a little hill-top town, combining French bon-vivre with Alpine charm. Just across the lake, however, it feels much less like a little mountain town, and much more like the alternative capital of the world it is. Charmless concrete apartment blocks flank an avenue leading to the Palais des Nations – which houses many of the UN’s instrumentalities.

After the initial impact of the giant three-legged chair standing on the square (a monument to victims of land mines – and not, as I thought, a monument to the death of the USSR set up by the other three powers) – I realised that on the other corners of the square were WIPO – the World Intellectual Property Organisation – and the UN High Commission for Refugees. Suddenly, I felt like I’d come face to face with the world that I’d only seen through text books.

The other international organisation that makes Geneva one of the most significant corners of the Earth is most famous for a giant hole that runs beneath it. The hole is the Large Hadron Collider, and the organisation is CERN, the European Centre for Nuclear Research. It turns out that a visit to the LHC – and a guided tour of CERN – had to be arranged months in advance. Nevertheless, the visitor’s centre was fascinating, and I got an inordinate amount of pleasure from just being near greatness.

Geneva’s Frenchness does carry with it one boon – French food. I had a duck dish and snails at a little restaurant in the old city. It also gave us a chance to enjoy a breackfast of pastries and coffee. From Geneva, we officially switched our evening meal beverage from beer to wine – we will soon be out of the Alps, and tomorrow we will be in Italy.

Written at Geneva station, en route to Milan.

P.S. The train tracks are bumpy, just like CityRail.

Until next time,

Tommy

(For those not familiar with the context, the vacation clerkship program, run every summer, is the primary route of recruitment for mid-to-large-sized law firms in Sydney.)

These are excellent tips, though, and it’s recommended reading for all the keen baby lawyers out there. I thought, however, that I’ll also share a few of my thoughts on the clerkships process.

#1: Take it seriously, but not too seriously. Some would see the clerkships process as a single, crowded drawbridge across the chasm between struggling law student and high-flying corporate lawyer. Others don’t seem fussed about it at all. It’s important to have a realistic sense of how important the process is.

The clerkship process is important. For those whose parents are not judges or an important client of a major law firm, it is the best and – despite the many hurdles set in the path – the easiest path to a job at a commercial law firm. Unfortunately, the profession in Sydney places far too great a significance on a start at a commercial law firm. In some respects, a clerkship becomes a badge rather than what it should be – a chance to find out whether you and commercial law make a good couple. As a result, though there are many paths forward, and many paths to commercial law, if your interests swing that way, the clerkship is significant for a law student because it is the easiest way to earn that badge. If you do not put your best – and smartest – effort into the clerkships process, you may end up spending twice or three times the effort to score a graduate job – efforts subject to all the vicissitudes of the market. So start preparing early (ideally, a year early), talk to everyone, read everything, and carefully think through every decision you make in this process.

At the same time, it’s important to keep in mind that a clerkship is not the be-all and end-all of starting your career. There are many other paths to commercial law: as a graduate, after a further degree, as a qualified lawyer, or as a foreign lawyer. Remember, also, that commercial law is not for everyone. It is neither particularly remunerative in the first few years, nor does it offer work life balance as a matter of course. Does working on internationally significant commercial transactions for large corporations float your boat? If it doesn’t, happiness might be just an application (to the public or community sector) away. So don’t fret if the clerkships process and the competition seem a little daunting - there could well be a better path out there.

#2: A successful clerkship application must be balanced but stand out in some way. What does it take to get a clerkship offer? Some firms are rumoured to look only at marks; others supposedly only hire law society executives. In truth, all firms look for a combination of things. For the majority, being well-balanced is key. Academic results, work experience, extracurricular activities, quality of writing (in the application form and in the cover letter), as well as maintaining a good impression in the interview – all combine to make a successful application. To ensure an offer, however, an applicant should be stand-out in at least one area – some quality or experience that helps you to make it past the “maybe” pile into the “yes” pile. For those who are organised, it may be worthwhile cultivating that stand-out quality in the months or year before the clerkship process.

#3: Focus on a few firms, and try as many paths as possible. The clerkship application process is stressful, intense, and time-consuming; a quality application takes a lot of effort and time to perfect. It is prudent to apply for a good number of firms, but anything more than half a dozen will probably be a serious strain on your life. Anything more than a dozen is not for the faint-hearted. Applying for too many firms not only means more applications to draft, check, and customise – it also means that you may find it difficult to remember all the facts about each firm when you front up for the interview. A cover letter carrying the wrong firm’s name is almost certainly the biggest no-no. While not as dramatic, a bland, generic application does not impress the reader, either.

The second part of this item is that it’s a good idea to try as many things as possible. As Enoch mentioned, while a giant law firm might seem the perfect, glamorous workplace, it is not ideal for everyone – indeed, it is not ideal for most people. On the other hand, while a small firm might advertise its great atmosphere and work-life balance, you may find its work a little, well, less than exciting. The clerkship process is a chance to check out the options on offer, and you never know what you might find.

#4 Talk to as many people as possible. Before and during the clerkship process, talking to those who have gone before is a good way of avoiding pitfalls that others have encountered. During the clerkship process, talking to others can shed light on the realities of life and work with your potential employer. All the marketing talk thrown at you during the process are also best read when filtered through a competitor’s interpretation. Firm-organised cocktail parties and other events are a good chance to meet and talk to the lawyers in the flesh – they are primarily for the applicant’s benefit, and only secondarily for the firm to spot outstanding candidates. While it may seem an elusive prospect while you are stressed by the interview process, this information will come in handy when you do need to choose between competing offers. Talking to many people also has benefits beyond the process – whether or not you choose the particular firm in the end, the relationships you forge through the interview process can build or extend your network in the profession.

Finally – this is not strictly speaking a tip – keep track of which firm is offering the best food during the process. It’s something fun to focus on when your mind needs a break from the stress of the process!

______

Tommy completed vacation clerkships at two law firms in London and an Australian law firm in Melbourne, and completed his practical legal training at a community legal centre and a corporate general counsel’s office in Sydney. No, he doesn’t talk about himself in the third person as a matter of habit.

My idea of Bern, or Berne (will the Swiss ever work out whether they want that e at the end of their placenames?) — was of a European version of Canberra. Soulless but monumental architecture, faceless bureaucrats in faceless black cars, a cultural festival or flower show betraying the only sign of habitation. I was astounded to discover, however, that Bern was almost a fairytale city. Perched atop a narrow plateau surrounded on three sides by glacial valleys, central Bern is a little gem of a city, medieval Switzerland rebuilt in stone, with mountain streams running down the centre of streets, little trapdoor shops by the side of the road, long covered walkways, and fountains decorated with colourful totems. As befitting the federal capital of a country that owns half the continent, there were monuments: the federal parliament building occupies a magnificent position on the edge of the city. Fittingly for Switzerland, on the two sides of parliament square adjacent to the parliament are the headquarters of the Swiss National Bank, and the Bern Cantonal Bank. Under the square, extending downward for several dozens of metres, are the vaults holding Switzerland’s gold reserve. Equally disproportionate to the scale of the medieval town is the cathedral, a great Gothic pile dominating the skyline.

In pics: then and now

Munich is a city of many contrasts. The industrial brutalism of its main station leads across a tree-lined, bustling and jumbled avenue to the simple lines of the Selingor Tor, one of the city’s several gates, and narrow, winding streets filled with medieval houses and baroque churches. A blue-and-white striped maypole makes it seem like a small Bavarian town, yet just down the road, the sprawling Gothic New Town Hall and the disproportionately lofty towers of the cathedral reminds the visitor that this was the capital of one of the great German kingdoms. A short subway ride away are reminders of Munich’s modern claim to fame: the stately curves of the BMW headquarters, and the more fluid shape of the BMW museum, sit snug against the graceful web-like canopies of the Olympic Park. Then there’s the curious mixtures of the old and new. The Residenz, the Munich palace of the Bavarian kings, is all Italiante splendour on the outside; but closer inspection reveals that that facades are painted on. Much of the palace burned down during the war, and reconstruction efforts have tried their best to connect surviving parts of the original, with mixed success. For me though, Munich stood out for its food, food, food, and drink. One of the city’s key attractions is the Hofbrauhaus, a temple to beer. The Ratskeller, a beer hall underneath the town hall, is one of my all time, worldwide favourites. Here are sausages like you’ve never had them before. For a carnivore like me, it was heaven.

And now, for my photos…

Munich’s Town Hall, built from 1867 to 1908, houses council offices, shops, and a restaurant in the cellars. In the main tower is the Glockenspiel – “story clock”

The working parts of the Town Hall are just like any other government office building, but quite suddenly the drab corridor would break into a little landing, framed by Gothic fireplaces and arched windows.

Munich has a habit of keeping its modern institutions of government in great buildings from the past – the Palace of Justice is another example (this time, in Baroque)

Whereas the town centre feels very Germanic with a dash of Baroque, the area around the Residenz is firmly Italianate, from the Feldherrnhalle modelled after Florence’s Loggia dei Lanzi, through the Italian high Baroque Theatine Church, to the neo-classical concert hall.

Oh yes, Munich is also a centre of culture

But some of its most awesome sights are at Olympic Park, and the nearby BMW headquarters and museum.

Until next time,

Tommy

Tip #5: Don’t let the fear of a public loss of dignity get in the way of doing something crazy. Remember, you don’t have a reputation to maintain in this country*!

* (Unless you actually do)

We knew something was up as soon as we stepped aboard the train to Füssen, in the foothills of the Bavarian Alps. The carriage, you see, was full of Asians. I was pretty sure we hadn’t got onto the express to Beijing via Moscow. Or did we?

The slightly surreal feeling from being surrounded by Mandarin, Cantonese, Korean and Japanese speakers on a German train became a full blown Escheresque moment when we arrived at our destination and joined a line dominated by Asians of all nations – including a party of Mongols in full traditional regalia.

Neuschwanstein, you see, is the archetypal Romantic castle. Situated atop a hill in the Bavarian Alps, the castle was commissioned by King Ludwig II of Bavaria (1845-1886) as a homage to the fantasy world of German romanticism, especially as represented by the operative works of Richard Wagner (1813-1883)

Though today regarded as one of the most important composers of the 19th century, until 1864 Wanger darted from physical exile to artistic isolation, his lack of income exacerbated by a political ban imposed by the royalist Saxony government due to Wagner’s involvement in republican politics.

In 1864, the 19-year-old Ludwig had been freshly crowned King of Bavaria the year before, and was popular for his youthful energy and brooding good looks. Ludwig was introduced to Wagner’s latest wrok Lohengrin, the tale of the Swan Knight. Ludwig was immediately captivated by this fantasy world, and asked to meet Wagner. The king and the composer left a deep impression on each other. Immediately, Ludwig facilitated the performance of Wagner’s latest work, Tristan unde Isolde in his capital Munich. He paid off Wagner’s debts, and installed him in a large villa.

However, the world in the 1860s was very different from the world of the Swan Knight. The realities of being a head of state soon caught up with young Ludwig. Within the complex political world of 19th century German states, Bavaria was a middle power sandwiched between the stronger states of Prussia and Austria. The Seven Weeks’ War between Prussia and Austraia was fought in 1866. Bavaria sided with Austria, but was forced to accept a mutual defence treaty with Prussia after the war. This brought it into the midst of the brewing conflict between Prussia and France, later to culminate in the Franco-Prussian war. Though Bavaria was formally on the winning side, the war helped Prussia become the overwhelmingly dominant German state, and subsequently the creation of the German Empire. Amidst the celebration of the German victory over the French, Luwdig had to sign a humiliating proclamation giving away Bavaria’s sovereignty to the new Empire headed by Prussia.

1867 was no more pleasant for Ludwig on the personal front. Wagner’s extravagance scandalised conservative Bavaria, and the king was forced to ask him to leave the country. Pressure to produce an heir led to an engagement with his cousin, the Duchess Sophie in Bavaria. This made Ludwig even more morose – he longed, he wrote, to be with Wagner instead. After much dithering, he broke off the engagement. He wrote to Wagner: “Thank God I am alone at last. My mother is far away, as is my former bride, who would have made me unspeakably unhappy. Before me stands a bust of the one, true Friend whom I shall love until death. . . If only I had the opportunity to die for you.”

It was during this difficult period that Ludwig retreated to Hohenschwangau, a castle built by his father on the ruins of a knight’s castle first built in the 12th century. Ludwig had spent many summers with his family there, and he enjoyed the seclusion offered by the castle, nestled between the mountains and a pristine lake.

Hohenschwangau castle (still owned by the Bavarian royal family) is only a short stroll from the village of Hohenschwangau, a short bus ride from Füssen. Visits to the castles are carefully timed, so we used the short time we had before our scheduled entry into Neuschwanstein to run up the hill and look around the older castle. Painted yellow, the castle gives an impression of medieval solidity – with its square keep and stout turrets. One interesting flourish was a set of brightly painted knights installed on the outer wall of the castle facing away from the village. However, one is constantly reminded of the real star of the show – the eye is almost involuntarily drawn to the brilliant white jewel that is Neuschwanstein, seemingly perched far above, with its elegant tower and many-faceted ridgeline.

From Hohenschwangau, Neuschwanstein is approached via a long, sloping carriageway through the woods. Horse-drawn carriages convey visitors close to the top, though we chose to walk (and had to pick our way carefully between the mounds of horse manure).

It was during his self-imposed exile at Hohenschwangau that Ludwig began contemplating bringing his fantasy into reality. He chose the top of a hill above Hohenschwangau, where centuries ago there were two small knights’ castles, a complete ruin by this time. To realise his fantasy of the castle of the Swan Knight, he hired a stage designer to supply the design (and the royal architect to supply the technical expertise that would keep the castle standing at its perilous location). Constrution began in 1869, while Ludwig lived in seclusion in Hohenschwangau – and as the new castle became more complete, Neuschwanstein itself. He became increasingly eccentric, obsessively trying to retreat into his fantasy world. So much so that Ludwig earned the nickname “the Mad”. The Bavarian establishment became increasingly dissatisfied by his extravagance – although he did not use state funds, he borrowed heavily from his own family, and when that source ran low, wanted to borrow from all the royal families of Europe.

The castle in winter presents a unique perspective. While the surrounding fields of snow made the castle’s pure white exterior seem especially brilliant, the snow also means that a number of more picturesque paths up the mountain are closed. For example, the Mary Bridge, across a gorge behind the castle, offers a postcard overview of the castle – but is closed in winter. We decided to chance it up a closed path that wound around the back of the castle, despite the warning signs. I soon realised why it was closed – covered in ankle-deep snow, the path was steep and narrow, with nothing to hold onto except barbed wires (okay, nothing to hold on to, period.) The end of the path was blocked by a fence which we had to climb over. Still – it was worth it for the view of the back of the castle.

After clambering over the fence, we found ourselves in the small court at the gate of the castle. It was here that the Neuschwanstein castle saw its only siege – or something like it. The year was 1886. The conflict between Ludwig and his ministers were boiling over. His ministers, Luwdig felt, were cramping his (opulent) style, while his ministers saw little use for a monarch who held power over them but did nothing on matters of state. Ludwig considered dismissing the whole cabinet, which prompted the ministers to act first. They assembled a medical report from four psychiatrists who had never met the king, which diagnosed him of paranoia. With this as pretext, a group of government commissioners went to Neuschwanstein to demand Ludwig’s capitulation. Tipped off by a loyal servant, Ludwig summoned the local police, who held off the commissioners at the castle gate with bayonets. He held the commissioners prisoner, but released them soon after. One enthusiastic local baroness rushed to the castle at the news of the siege, attacked the commissioners with her umbrella, and then ran into the castle to identify the assailants to the king.

Immediately inside the castle gate is the main, outer courtyard. From here, stairs lead into the main buildings of the castle. The strange juxtaposition of the ancient and the modern was immediately apparent. The castle was built in a fantasy medieval style. Just 100 years later, most of the stonework still seems new, giving the sensation of being in a medieval castle newly built – or, more accurately, still under construction. Alongside Gothic dragon gargoyles are electric lights: Ludwig pioneered electricity in Bavaria. This juxtaposition was all the more apparent in Ludwig’s own bedroom. A posted bed was topped by a carved wooden top which represented all the prominent towers of every cathedral in Bavaria, a massive wooden hybrid between a beehive and a wedding cake. Yet, within the same chamber, is a basin (in the shape of a swan) fed by running water delivered via modern plumbing, and even a flushing toilet.

One of the grandest completed rooms in the castle is the Singer’s Hall. Intended as a place for Wagner to write and perform his plays, the hall is gloriously decorated with murals and frescoes. Though Ludwig never saw the hall put to use, the hall is today regularly used for musical performances.

However, the comical scene of the siege at the castle gates quickly turned serious. After the first attempt at deposing him, Ludwig took no measures to strengthen his position. Less than a week later, the government, now better prepared, arrested him at Neuschwanstein and deposed him. The crown, ingeniously, passed to his brother Otto, who was genuinely insane, and power passed to Prince Luitpold, his uncle, as regent, and a willing supporter of the conspirators. The next day, June 13, 1886, Ludwig went for a walk with the psychiatrist who diagnosed him, and both were found dead in the lake. Debate rages to this day about the circumstances of his death.

At this death, the interiors of the structurally complete parts of the castle were only 1/3 finished. A main structure, the Keep, was intended to be built in the upper courtyard (in front of the main structure seen today), but only the foundations had been laid. The new government halted all works on the site, and the castle later became state, rather than royal, property.

Ironically, however, a project lambasted at the time as an extravagant and lunatic waste of money is today one of the most iconic symbols of Bavaria and Germany. In parts of Asia, for example, it has become almost the symbol of the romantic Europe. As the inspiration for fantasy castles such as Disney’s Sleeping Beauty Castle, it is perhaps not a far stretch to say that Neuschwanstein has become a worldwide cultural motif. The castle is visited by 1.3 million people annually, generating hundreds of millions of Euros in revenue for the state and far outstripping the maintenance cost of the castle.

Ironically, too, for Ludwig, whose death was in a significant part caused by his extravagant spending on Neuschwanstein and other projects, the castle has become the legacy by which he is remembered. Hardly anyone remembers the few political and social decisions he made, and were it not for the castle, Ludwig would only be a footnote in the history of a regional dynasty.

For the hordes of foreign tourists, though – I wondered whether they stopped and thought about what they were seeing. Here they were, at the archetypal “European” castle, unmistakeably solid in all its gleaming splendour. Yet the castle was as much make-believe as the papier-mache that its designer would have been more accustomed to working with. The castle has no defensive purpose, and its beauty comes from the manipulation of traditional defensive forms – turrets, keeps, battlements – into aesthetically pleasing forms. The interiors, with pencilled-in drawings and unfinished plaster walls, intensify the feeling of walking through a stage set, especially when a roughly whitewashed corridor leads into a spectacular completed room. Perhaps, it’s best to see the castle, not as an archetype or a symbol, but a sui generis creation of its times and circumstances. That it remains unfinished is, in a sense, a blessing: it offers us a glimpse into 19th century Romanticism, whereas the finished product would have simply been an imitation of a real medieval castle. It is beautiful, and it is unique, and that’s what counts.

On 22 April 2009, the High Court of Australia delivered its judgment in the case of IceTv Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14 (hereafter “IceTV“. The appeal by IceTV Pty Limited (“IceTV“) was upheld unanimously by a court comprising French CJ, Gummow, Hayne, Heydon, Crennan and Kiefel JJ. The court found that IceTV’s use of program title and time information originating from Nine Network Australia Pty Limited (“Nine“) did not infringe Nine’s copyright in its published programming schedules.

Significance of the case

The IceTV case has been a running saga in Australian copyright law for several years. The case is significant for several reasons. First, it is an important indication of the present High Court’s views on several open issues of copyright law which have been in flux in recent years. The bench which sat on IceTV encompass all but one (Bell J) of the present court, which has changed significantly in the last couple of years. Specifically, the case was a decisive statement of the court’s view on copyright’s protection of labour and time, versus the need for a “creative spark”, in compilations, an issue with increasing ramifications in the digital age. While the case considered this issue in the context of copyright infringement, and specifically the question of what constitutes a “substantial part” of a work, their Honours provided a strong indication of their views of the parallel issue in the context of subsistence of copyright.

Background

IceTV’s main product is a digital program schedule, which subscribers could use to program their digital video recorders to record specific shows and skip over ads. To create the schedule, IceTV employees started by noting the TV schedule over a 3 week period by actually watching the programs. Every week, they would use the previous week’s actual schedule as a base to predict the next week’s schedule. In the final step, they would check the schedule against the published TV schedule (the “Aggregated Guides”), as published in magazines and newspapers. It would then modify some titles and times, e.g. for movies and one-off programming changes, to match the published guides. These Aggregated Guides are made by “Aggregators”, who combine schedules sent to them by the TV networks. The schedules as sent out by Nine, for example, contained the TV schedule with title and time information, as well as synopses of the programs and other details. IceTV conceded from the start that Nine owned copyright in the schedule, but denied that it had taken a “substantial part” of the work so as to infringe the copyright. In the result, the High Court held for IceTV, agreeing that the title and time information taken was not a substantial part of the work and that no copyright was infringed.

Approaching copyright

The High Court criticised the approach taken by the full Federal Court, which focussed on the “interest” protected by copyright. The High Court warned that such an approach made it tempting to slip into a high level of abstraction. The higher the level of abstraction taken, the more likely that attention will be inappropriately focussed on the idea, or the facts, that underlie the work, rather than the expression of the work itself.

Under the full Federal Court’s approach, for example, the “interest” protected by a copyright over a compilation like Nine’s schedule might be seen as Nine’s commercial interest in its proprietary programming decisions. Thus, the “appropriation” by IceTV of Nine’s “skill and labour” in making these programming decisions made out the infringement. While arranging the program information required little skill and modest labour, according to this analysis, the much greater skill and labour in making the programming decisions was what copyright protected. In taking the programming order, names and times, IceTV took advantage of a “substantial” part of Nine’s overall “work”, and thus infringed Nine’s copyright.

The High Court emphasised that analysis must be firmly rooted in the first principles of copyright law. That is, copyright protects expressions, not ideas; expressions, not facts. In the context of compilations of facts, especially, it was not helpful to consider the essential “interest” of the copyright owner in the work; nor was it helpful to repeat the mantra “what is worth copying is worth protecting”. Nine’s copyright protected only the precise expression of the programming information in the form of the program schedule; the programming decisions, being statements of future intention, were underlying facts. The only “skills and labour” which mattered was that which went into creating that expression, as distinct from the underlying facts. Thus, the signficaint “skills and labour” that might have gone into making the programming decisions were not relevant to the schedule. While significant skills and labour might have gone into writing the synopses, for example, the arrangement of program titles (generally not made up by Nine) into chronological order (an obvious order) did not require much skills and labour.

Implications for finding infringement

There are several implications for finding infringement of copyright flowing from this approach.

First, it is important to identify the elements of subsistence of copyright, even if subsistence is conceded. In particular, in the context of a compilation as here, it is skills and labour of the author which elevate a prosaic arrangement of facts into a work subjec to copyright. In the present litigation, the parties, including the trial and appeals judges, made no distinction between the joint authors, who must be natural persons, with the owner, who is Nine, their employer. This, according to the High Court, led to the confusion between the skills and labour that went into the work, as opposed to the (irrelevant) skills and labour expended by other employees of Nine in making programming decisions.

Secondly, originality is important in asessing whether an alleged infringer has taken a “substantial part”, so as to make out infringement. Copyright protects an “original” expression. Where a work contains both original (or creative) and non-original (information) elements, copyright vests in the whole work, but it is the taking of original parts that makes out infringement. In application, what is observed is a continuous spectrum. Had IceTV taken the synopses, for example, which were wholly creative elements written by the authors of the schedule, a modest taking would have made out the taking of a “substantial part” and thus infringement. However, when it comes to less original and more factual information, a great degree of taking is required to make out the taking of a “substantial part”.

Into considerations of originality ties considerations of skills and labour. In compiling facts, it is the degree of skills and labour applied which lends what was factual information the requisite originality for copyright. The High Court emphasised that what mattered was the skills and labour that was directed towards coming up with the particular form of expression of the work. In the case of the programming time and title information, according to the High Court, the authors of the schedule generally took the title of the program as given, and the time as determined by those making programming decisions, and then arranged them chronologically, an obvious order. As such, not a great deal of skills and effort went into the expression of the compilation in respect of program time and title. While a great deal of skills and labour might have gone into making the underlying programming decisions, those skills and that labour was not directed towards coming up with the particular form of expression of the work, and thus, not relevant when assessing the originality of what was taken. Thus, IceTV, in taking a modest amount of that information, did not take a substantial part of the copyright work. It did not infringe Nine’s copyright.

Implications for subsistence of copyright

This case dealt with finding infringement of copyright, not subsistence. That copyright subsisted over the work in question was conceded from the start. Nevertheless, subsistence of copyright was on everyone’s mind, and in particular, the decision of the full Federal Court in Desktop Marketing Systems Pty Ltd v Telstra Corporation Limited (2002) 119 FCR 491 (“Desktop Marketing“).

In that case, the full Federal Court (composed identically with the full Federal Court bench that heard IceTV) decided that copyright subsisted in the White Pages directory because of the skills and effort that went into the work, a time- and capital-consuming endeavour, even though the arrangement of names and addresses into alphabetical order was an obvious and prosaic form. The decision in Desktop Marketing stands in contrast to the way this issue, often called “sweat of the brow”, is dealt with by the US Supreme Court in Feist v Rural Publishing, where no copyright was found to subsist in a telephone directory, a mere arrangement of facts.

Though subsistence was not a direct issue in IceTV, most commentators hoped the High Court would clarify the issue. Partly motivated by this, the Australian Digital Alliance and the Telstra Corporation both appeared as amicus curiae. Accordingly, the High Court did comment on the issue of subsistence.

First, the Court emphasised that subsistence required “originality”. This means that the work must have originated with the author, and not merely copied. “Originality” meant that the work must have taken some “independent intellectual effort” by the author or joint authors.

For compilations of facts, it is emphasised that facts are not copyrightable, but compilations are. Two kinds of effort go into making a compilation (and most other types of works) – “industrial collection” or “sweat of the brow” on the one hand, versus “creativity”. However, it is a false dichotomy to treat the two as opposites, one copyrightable and the other not. Nevertheless, the court opined that what is commonly called a “creative spark”, which can be manifest as the exercise of skills and judgment, is a necessary element of the originality that lends a work its copyrightable nature.

Thus, while subsistence of copyright was not an issue here, Gummow, Hayne and Heydon JJ concluded without deciding that “[i]t may be that the reasoning in Desktop Marketing is out of line with the understanding of copyright law over many years”.

Conclusion

IceTV represents a clear indication from the High Court of its preferred approach to copyright, especially in the context of compilations. The emphasis on first principles, and the caution against an inappropriately high level of abstraction, returns clarify to analysis which, in recent years, has become mired by confusion. Copyright is an artificial right, created by statute for policy reasons. It is a creature of the economic context in which it is found: it seeks to encourage creativity and innovation by giving authors a commercially valuable right, limited in time, to exploit the products of their intellectual effort. This uneasy balance means that it is tempting, and easy, to slip into confusion over what, precisely, is being protected. The emphasis on precise legal distinctions is one way to maintain the balance.

Though merely obiter, the discussion on originality in the subsistence of copyright, and particular on the reasoning in Desktop Marketing provides important guidance for copyright law in Australia. Without deciding, the High Court has signalled a willingness to settle the issue of “sweat of the brow” in a manner that is more in line with the generally accepted view in accordance with Feist

At the same time, subtle differences can be detected between the two joint judgments (one by Gummow, Hayne and Heydon JJ, and the other by French CJ, Crennan and Kiefel JJ). Gummow, Hayne and Heydon JJ placed greater emphasis on first principles and the need to clearly delineated ideas from expressions, expressions from facts, the original from the unoriginal, and labour from skills. By contrast, French CJ, Crennan and Kiefel JJ saw a continuum, with the original more worthy of protection than the merely laborious, and with a greater taking required to make out “substantial part” of the unoriginal compared to the creative. It may be that, should the issue in Desktop Marketing return to the High Court in the near future, these subtle differences will play a more dynamic part in the Court’s reasoning and judgment.