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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.

An article in the July 2008 issue of Lawyers Weekly makes some interesting observations about principles involved in the case IceTV has brought against me and Duncan Ross. The article, “Innovation put on ice?” by Professor of Law at UNSW Joellen Riley, draws links between two disputes over intellectual property – Nine alleging IceTV infringed their copyright, and IceTV’s subsequent claim that Duncan Ross and I, former IceTV executives, breached “non-compete” agreements.

Professor Riley says: “The upshot of the litigation was that Nine’s insistence on its ownership of copyright in something so mundane and transient as a TV program schedule led – indirectly – to the sterilisation of the talents of two innovators in entertainment media technology for a not-insignificant period of time”.

As this case is still grinding its way through the NSW Supreme Court after more than a year, I will not comment on the details of the case but I found the article exceptionally thought provoking.

You can read the whole article here : Innovation put on ice?

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.

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