10 barristers, 6 judges & 9′s schedule

October 16th, 2008

Today I am in Canberra for the High Court appeal of Nine vs IceTV (see my previous posts below). This case has certainly gathered a head of steam. The importance of the outcome of this final appeal is reflected in the fact that leave was granted for Telstra to appear in support of Nine and to the Australian Digital Alliance in support of IceTV. Hence the cast of thousands at the bar table.

Telstra is understandably concerned. If this appeal goes against Nine, it could be a green light for others to use information from their phone book which until now has been protected by copyright laws (Telstra vs Desktop Marketing being the landmark case).

The Australian Digital Alliance is a public interest group which champions the right of access to information, as their website says:

Australia’s copyright laws are the chief means by which we as a society regulate the creation and distribution of knowledge. The effects of a misguided copyright regime would be dire and create enduring harm to our education system, our economy and our culture.

The day kicked off with IceTV’s silk John Ireland explaining how IceTV produces their guide and fielding questions from the bench. IceTV did not accept that copyright subsists in Nine’s weekly schedule. They said it is “Nine’s statement of its present intention as to what is going to be broadcast” when and once these facts are published they are a public resource which can be used as a basis for their research.

There was much discussion about the primary purpose of creating the schedule – is it mainly for meeting commerical objectives or for providing a TV guide for the public?

The judges also asked who the authors of the alleged copyright work are (a company cannot be an author, only people). After much discussion this point is still being argued.

Mr Ireland argued that this case is distinguished from “indirect copying” cases, such as where someone copies house plans by measuring up a house built from the plans. He said that in that case the process recreates the original work, whereas IceTV does not reproduce Nine’s schedule.

Mr Webb, appearing for the Australian Digital Alliance, submitted that the Full Court had lost sight of what was required to constitiute an original work of an author. He also argued that copyright law has always strived to protect the public interest in dissemination of information, and that the public interest must be balanced against the author’s interest. He suggested that Nine was attempting to control information long after it has lost its confidentiality.

Nine’s Mr Bannon was next. He described the process Nine used to create its weekly schedule and stressed that the process of deciding the broadcast schedule cannot be separated from the process of creating the copyright work, the weekly schedule.

The Judges asked many questions which seemed to be aimed at teasing out the distinction between making business decisions, aimed at maximising ratings, and publishing the schedule.

Justice Gummow, for example, asked “Is what you are seeking protection for the substantial business investment in building up the database?”.

There was much discussion about whether the authorship process included all the preparatory work. Justice Haydon said “The expression of those two columns [the time and title] is not the hard bit, thinking them up is the hard bit” and asked whether the work of negotiating purchase of programs is also part of the skill and effort of creating the schedule.
The case resumes tomorrow.  Stay tuned.

Copyright case to go to High Court

August 26th, 2008

The High Court today granted special leave to IceTV to appeal the finding that they had infringed Nine’s copyright in their program guide.

IceTV’s application for leave cited 10 ways in which the Full Court had erred. To me the most interesting points will be concerning indirect copying. Quoting IceTV’s application:

6. The Full Court erred in characterising the case as one of “indirect copying.”
7. The Full Court erred in finding that the requisite causal consideration existed between the Weekly Schedules and the IceGuide produced by the first applicant.

A lot rides on this point, not only for IceTV but for many others who compile information of various types. For example, as the ruling presently stands, it is open for say asupermarket to claim that the government’s “Grocerywatch” breaches their copyright by indirectly copying their price list. See my earlier post for more on the question of indirect copying.

If the High Court confirms that Nine’s copyright is breached no matter how the guide is reproduced (which seemed to be what the judgment said), then even watching TV and writing down what’s on would be a copyright breach.

It’s interesting that IceTV was granted leave to appeal, while Desktop Marketing was refused leaveto appeal the finding in favour of Telstra in an earlier landmark case. Perhaps the High Court realises what a can of worms the Full Court judgment against IceTV has opened up.

Copyright expert says Court was right

August 2nd, 2008

The Copyright Society of Australia hosted a seminar on 24 July 2008 at which David Lindsay, Senior Lecturer in Law at Monash University gave a presentation entitled “Appeal decision in Channel Nine v Ice TV”.

David analysed both the legal foundation and policy implications of the ruling. He said that “the Full Fedral Court decision is entirely in accord with authority and appeal would need to overturn Anglo-Australian law” and concluded “The debate about the future of Australian commercial FTA broadcasting is properly a matter for broadcasting policy, not copyright law.”

A summary of this excellent presentation can be downloaded from the Copyright Society’s website here.

Government in the dark on eco-lighting

August 1st, 2008

The frightening part of climate change is the speed with which we need to act to bring about any meaningful reduction in greenhouse gasses.

Governments are notoriously slow to act, and measures introduced take a long time to bite. To complicate matters even more, technological developments are coming faster and faster.

Governments must therefore design policy around outcomes, not particular technologies.

For example, lighting technology has already outpaced climate change policy. As my latest business briefing paper Energy efficient LED lighting ready for the big time explains, well-intentioned schemes like the NSW Greenhouse Gas Reduction Scheme encourage use of dangerous, second-rate fluorescent lighting when much better alternatives now exist.

Peter Vogel

Invasion of the Trojan TiVo

July 9th, 2008

When I attended Seven’s TiVo launch last week, I was struck by the narrow terms in which the consumer benefits were presented. Yes, TiVo will surely be the best PVR on the market, but its most important feature is its ability to capture video content from the Internet.

TiVo is just the latest of many household appliances that include Internet connectivity.

Within just two years millions of Australian homes will have entertainment devices with a network connector or WiFi antenna on the back. I liken this to an invasion of Trojan Horses into the living room because that little blue cable can deliver an army of new applications to your TV.

For more details, see this Industry Briefing Note I wrote for invetsment bank Lincoln Crowne Company.

TV or not TV, that is the question

June 12th, 2008

Current technological and social trends are paving the way for the Internet to topple television as the dominant source of home entertainment. The line between television and the Internet is already rapidly blurring.

Over the past 20 years the Internet has changed the way we communicate, get information, and do business. Now it’s turning socialising and entertainment on its head. And that won’t take 20 years. Two years would be closer to the mark.

Time spent in front of the TV is falling and Internet usage is climbing. A recent Australian survey found that the average Australian spends as much time on the net as watching TV. Internet vs TV   Â

Download the industry briefing paper I wrote for Lincoln Crowne & Company (an independent boutique investment bank) for a detailed analysis.

IceTV back in court

June 12th, 2008

Nine had IceTV back in court today, Thursday 12 June 2008. This was the consequence of the Full Court’s recent finding that IceTV had infringed Nine Networks’ copyright in their TV schedule (see my blog here and here for more details).

The matter was remitted back to Justice Annabelle Bennett to make the appropriate orders. Most of the day was spent debating the wording of the injunction restraining IceTV from further infringement. IceTV argued that the injunction should be narrow and be restricted specifically to the process which the Full Court had found to have breached Nine’s copyright .

Nine argued that a broader injunction should be included also, stating more generally that IceTV be restrained from reproducing their schedule.

Justice Bennett expressed her reluctance to make orders which simply retated the law, but Nine submitted that in the absence of such an injunction IceTV could simply “wriggle around” the narrower restraint.
However no conclusion was reached today. IceTV have sought leave to appeal to the High Court, and as this application will be heard on the 25th of June, it appears no orders will be made until after that hearing.

It’s good news and bad news for digital switchover

June 5th, 2008

TiVo recently announced that they will be launching in Australia as a free service. This is a very smart move, and assuming there are no hidden catches (such as the free service being for a limited time only) will guarantee rapid takeup and will motivate consumers to go digital. That’s good news for the government who are planning to start shutting down the analogue TV service in less than 2 years time.

On the other hand, TiVo is still a proprietary system controlled by the TV industry, and in the light of with Nine’s recent success in the courts it looks like the market for PVRs in Australia will be artificially limited. Download the industry briefing paper I wrote for Lincoln Crowne & Company (an independent boutique investment bank) for a detailed analysis.

How to copyright facts

May 14th, 2008

In her judgment in August 2007, dismissing the copyright claim by Nine Networks against IceTV, Justice Bennett said “The underlying principle is that the law of copyright does not give an exclusive right to state or describe particular facts.”

The recent appeal decision overturning Justice Bennett’s ruling appears to me to be confirming that it is now possible, in many situations, to gain protection of mere facts.

Here’s my take on what happened in the Nine/IceTV situation (and I am neither a lawyer nor spokesman for IceTV).

Understanding that a published TV schedule is protected by copyright, I built a business around the idea of independently creating a TV guide by original research and creativity. See this entry for more details. The research involved watching TV and writing down what was showing when. The resulting rough schedule was then fine tuned from time to time using other information sources.

In 2002 I was delighted to read the judgment in Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd which said: It is at law, if not in practice, open to a person to ascertain all the facts recorded in a Telstra directory by independent inquiry and to compile their own directory containing the results. So long as the second compiler did not copy Telstra’s product, there would be no infringement of any copyright in the (identical) Telstra directory.

This seemed to confirm exactly the process IceTV would use. However the judges in the recent Nine appeal (incidentally the same three as in Desktop) ruled that although IceTV had no access to Nine’s original work, IceTV had indirectly copied Nine’s copyright schedule. They clearly identified IceTV’s use of information such as TV guide websites to which Nine licensed their information as the medium of indirect copying. They concluded: As we have explained, Ice, to the extent it reproduced time and title information from the Weekly Schedules, appropriated the skill and labour used by Nine to create the Weekly Schedules.

The implication of this seems to be that “indirect copying” has been defined as any activity which results in the “reproduction” of a copyright work. Had IceTV not looked at the published guides at all, and relied only on what could be learned by watching TV, the Court might still have found them guilty of indirect copying.

This casts a perverse new light on the Desktop dictum quoted above. It seems that “so long as the second compiler did not copy Telstra’s product” takes on a new meaning in light of the Nine judgment. The same three judges who seemed to have given me the thumbs up in 2002 for the process I was proposing to use, seem to now be saying that no matter what Desktop would have done, they could not reproduce Telstra’s phone listings without “appropriating their skill and labour”.

Suppose Desktop Marketing had actually gone door to door and asked everyone what their phone number is, even for just one suburb. Having published this list, Telstra could argue that they had indirectly copied their phone book through the medium of many informants. The court would likely find that were it not for their skill and labour expended in assigning households unique numbers, it would have been impossible for Desktop to create their directory. Following the precedent of Nine vs IceTV Desktop would have breached Telstra’s copyright.

Telstra could further argue that even individual phone numbers and the associated identity is their copyright property, and writing down a single name and number given to you by a friend, or printing your name and number on a business card, is a breach of their copyright.

I can also imagine situations where the owner of the original work does not publish it at all, but uses copyright law to regulate use of their information, which may be mere facts.

These developments in Australian law are a worrying move towards a new class of intellectual property rights that might be great for some businesses’ bottom line, but a threat to competition and the public interest generally.

I see IceTV are considering an appeal to the High Court. I also recall that Desktop was refused leave to appeal to the High Court.

I wish them luck.

Titanic sinks Iceberg

May 8th, 2008

The Nine Network today won their appeal against last year’s decision in favour of IceTV.

Three Federal Court judges ruled that IceTV did breach the Nine Network’s copyright in its weekly program guide.

The exact implication for IceTV will be decided when the matter is remitted to the primary Judge, Annabelle Bennett. However IceTV have been ordered to pay Nine’s costs which could run into millions. Nine are also seeking damages, although these will be hard to prove.

Judges Black, Lindgren and Sackville ruled that Judge Bennett had erred on several crucial points. The full judgment can be read here.


IceTV’s method of creating their EPG (electronic program guide) was described in detail in the judgment handed down by Justice Bennett in 2007 and can be summarised as follows.

A template guide was produced by watching TV for a couple of weeks and writing down what was on each channel in each timeslot. This template is then used to predict what would be on the following week, based on the fact that the majority of programming is consistent from week to week. IceTV staff create original synopses or program descriptions based on their own research and original writing. Where programming was not completely predictable, such as when a “special” was aired, or a season finished, IceTV staff make corrections to the predictions based on checks against a range of published sources.

Nine argued that the time and title information in their weekly schedule was itself a copyright work, even without the other information such as synopses and ratings. Justice Bennett did not accept this, arguing that the guide had to be considered as a whole, and on that basis the parts that IceTV copied were not substantial enough to constitute a breach of copyright. She also felt that the sources from which IceTV got their information, being published guides which included all the other networks’  schedules, were sufficiently removed from Nine’s source schedule as to fail the test of “causal connection” between the original work and the alleged infringing work.

The appeal judges disagreed with the primary judge on all these points. They decided that the creative skill that went into selecting which shows went to air at what time made the time and title section of the schedule very important. Also, the test of whether a “substantial” part of the work has been copied looks to the quality rather than the quantity of the material copied. They concluded that IceTV had “appropriated the skill and labour used by Nine to create the Weekly Schedules”.

A landmark case, Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd established that there is no obstacle to recreating a compilation by independent inquiries provided there is no copying of the first compilation. In IceTV’s case, the appeal court ruled that the process of checking against published sources and correcting the Ice guide as required amounted to using”Nine’s copyright work by indirectly copying time and title information from the Aggregated Guides”.

The definition of “copy” is clearly the seminal issue in this case. It is by no means a simple question, especially when the Court refers to IceTV’s actions as “indirectly copying”. An example of indirect copying is the case of LED Builders Pty Ltd V Eagle Homes Pty Ltd in which Eagle Homes was found to have breached LED Builder’s copyright in its house plans. In this case Eagle’s draftsmen were give oral instructions on how to modify their plans to make them very similar to LED Builders’ plans. Eagle argued, unsuccessfully, that they didn’t have access to the plans they were accused of copying.

In IceTV’s case, the appeal court has found that even though IceTV did not have access to Nine’s schedules, they indirectly copied them by modifying their own schedules using websites and other sources which were copies of Nine’s time and title compilations.

The court concluded “Ice used the time and title information reproduced in the Aggregated Guides as an important resource for producing IceGuide. In consequence Ice reproduced a substantial part of Nine’s copyright work. The required causal connection was present. This was a case of indirect copying of a substantial part of a copyright work.”

Stay tuned.

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