IceTV v Nine High Court transcripts now available

October 29th, 2008


2008 post follows:

The transcripts of the IceTV vs Nine Networks appeal to the High Court of Australia have now been published.

The first day 16th Oct 2008
Second day 17th Oct 2008

My comments on each day’s arguments are presented in previous entries in my blog.

Going by last year’s High Court Annual Report, a judgment can be expected within 3-6 months.

Electric cars for the impatient

October 24th, 2008

Yesterday’s announcement that AGL and Macquarie Bank are planning to spend $1 billion to build an electric-vehicle charging network in Melbourne, Sydney and Brisbane is yet another indicator that the carbon crunch could be the saviour of Australia’s automotive industry (see my previous post on this subject).

The car companies are slowly tooling up for all-electric vehicles, although progress is being hampered by the temporary insanity of hybrids. Meanwhile, many early adopters are taking matters into their own hands and building their own electric cars.

Last weekend I had a look at some examples at the Field Day organised by the Sydney branch of the Australian Electric Vehicle Association.

Most of the vehicles on display were conversions done by dedicated owners. The process is quite straight forward. Take a car of your choice, take out the petrol engine and everything associated with it (cooling system, fuel tank, starter, alternator etc) and install an electric motor, batteries and controller.


A typical conversion


 Engine compartment gutted and a small electric motor installed.

The performance of the converted car can be whatever you want, it only depends on budget. Acceleration and top speed is determined mainly by motor size and range by battery type and capacity. The battery is the Achilles heel and the most expensive part. Traditionally, various styles of lead-acid battery have been used, but these are very heavy and lose efficiency after only a couple of hundred charges. The newer Lithium iron phosphate (LiFEPO4) batteries are dramatically lighter for equivalent powerm, and should last ten times longer. They are, of course, many times the price, although this will no doubt change once production volumes rise.

Cost of the materials to convert a typical car is roughly $2000 for the motor, $2000 for the controller and $5,000-10,000 for LiFEPO4 batteries. There is a useful collection of links to Australian EV component suppliers on the Zero Emission Vehicles Australia website.

A classic VW beetle conversion

Typical scene under the hood of a homebrew EV

The owner of the bike below built the whole thing for under $2000, including the bike. The motor is small and nearly silent. You’d be able to drive this bike into an apartment building for parking. Top speed is 70km/h which is quite adequate for getting around town.

As I explained in my article published recently on Crikey, The Great Hybrid Swindle, fully electric cars are much more environmentally friendly than hybrids, and also very much cheaper to drive. Even if they are recharged using coal-fired electricity, they have a better carbon footprint. I calculate that for average city driving, the daily energy required can be captured from a modest solar array on the roof of your house, resulting in absolutely cost-free and emission-free driving for most people. If you drive somewhere that does not a powerpoint for recharging, the solar panels pump electricity into the grid during the day, and you charge the car overnight.

The Rudd Government has made a strong commitment that Australia will play a leading role in development and application of green car technology. They have issued the Green Car Challenge, pledging to purchase environmentally-friendly vehicles for the Commonwealth fleet if they are produced in Australia.

The 2008 Review of Australia’s Automotive Industry recommended bringing forward the Green Car Innovation Fund to 2009 and doubling the grants to $1bn. It also proposed the inclusion of transportation in the new emissions trading scheme. This carrot-and-stick approach will be a huge boost to local green car initiatives.

The future of driving does not involve petrol. AGL and Macquarie have obviously caught on to that idea.

Perhaps the Australian car industry, being quite tiny by world standards, will be able to change course more quickly than their global counterparts.

Now the long wait

October 18th, 2008

The High Court appeal in Nine vs IceTV concluded yesterday. Mr Bannon SC completed Nine’s submission, which was focussed largely on showing that Nine’s weekly schedule does fall within the Copyright Act’s definition of a compilation. The judges continued their questions about who the authors are, and when their authorial work started and ended. They were also interested to know exactly which copyright work Nine claimed to own. Gummow J said that the statement of claim talks about program guides which are ‘up there’, with a gesture to the heavens.

A compilation requires selection and arrangement of elements and the process needs to require skill. Mr Bannon had said the day before, that the process of selection started months earlier, when Nine’s executives visited the producers in Hollywood and so on. On the second day, when Justice Hayne pointed out that the selection process must be made from existing stock, Mr Bannon said “I am beating a full-scale retreat from Hollywood – and that it was “via Damascus”.

The Judges continued questioning whether Nine’s activities were a part of the selection process for making the compilation, or a series of commercial decisions for optimising their broadcasting business. Mr Bannon accepted Justice Hayne’s suggestion that “a root proposition you will have to make is that a decision about a business decision, once recorded in a material form, is a compilation”.

Justice Crennan posed a number of hypothetical scenarios, such as: if a competitor shows the same show as Nine at the same time, would they breach Nine’s copyright by putting that in their guide?

Mr Catterns QC then spoke for Telstra. He argued that the policy that compilation copyright protects commercial considerations has long been decided, and that is a question for the legislature, not the courts. Once again, Justice Crennan questioned whether making commercial decisions is an act of compilation. She also explored the question of originality “You can’t say a trademark is original just because you spent $10 million coming up with it”.

IceTV’s Mr Ireland QC then argued that the people who made the programming decisions were not the authors of the Nine guide, the author is an un-named person who prints out the selection of fields from their large database to create the guide which is sent to the aggregators.

To me, the most striking feature of this appeal was that the goalposts seem to have shifted dramatically since the case began. Initially, there was little discussion about the nature of Nine’s copyright work, it was all about whether IceTV copied it and, if so, whether it was a substantial part. The High Court seemed primarily interested in whether Nine’s guide is actually a copyright work within the definitions of the Act, and if so how much protection it should get.

There was also the question of whether IceTV’s activities cause Nine any harm. Nine were asked “what are the damages if somebody else informs the public about your programs? Nine said that they did not get paid for their schedule by the aggregators, but they had control over what they did with it. The relevance of this is discussed in Benedict Atkinson and Professor Brian Fitzgerald’s recent publication described in my last blog entry.

As Atkinson and Fitzgerald say:
Ice TV v Nine Network is a seminal copyright case because of its potential to restrict information flow. Access to information is a human right, and while it might be thought that the public is not much harmed if prevented from extracting data from unexpressive information compilations, over time the oppressive exercise of proprietary rights in information could radically undermine our freedom to inform ourselves without cost or restriction.

IceTV case could decide future of “copyright in information”

October 17th, 2008

An interesting analysis of the social issues underlying the IceTV vs Nine case has just been published by Benedict Atkinson and Professor Brian Fitzgerald (QUT Law Faculty): Copyright as an Instrument of Information Flow and Dissemination: the case of ICE TV Pty Ltd v Nine Network Australia Pty Ltd.

The abstract says: “This article outlines and critically evaluates the case of Ice TV v National Nine Network. This case which is being heard before the High Court of Australia in October 2008 considers the boundaries of copyright protection for compilations…”
“The convening of all seven judges of the High Court is a rare occasion and reserved for cases of special significance. The court’s decision in this case has the very real potential to influence the shape of innovation and productivity in Australia over the next decade. It will be asked to determine a legal issue that invites the court to provide guidance on the underlying purpose of copyright law and its role in promoting information dissemination and information flows: variables that (evolutionary) economists see as foundational to innovation.To this end we believe the outcome of this case may substantially determine the extent to which commercial information compilers control the use of non-expressive compilations. The underlying concern of many observers is that if substantial reproduction is said to result from appropriation of investment, and investment is said to be a legitimate simulacrum of expressive originality, most unauthorised copying of compiled information will constitute breach of copyright. The adverse social and economic consequences of so-called ‘copyright in information’ may be great.”

The full article can be downloaded from the QUT website.

I have also previously mentioned an excellent analysis of the case by David Lindsay in a previous blog. David’s Powerpoint presentation can be downloaded from the Copyright Association’s website. Come back tomorrow for a rundown on the final day of the High Court hearing.

The great hybrid swindle

October 17th, 2008

I recently enjoyed a business lunch where the guest speaker was Climate Change Minister Penny Wong. I was very impressed by her obvious intelligence and enthusiasm for her job (“My mum was thrilled when I told her my new job is to save the world”).

However Wong is a lawyer, not a scientist, and when asked what she is personally doing for the environment, she said “I drive a hybrid”.

Oh dear, she’s fallen for the hybrid hype. This prompted me to write an article which was published this month by Crikey.

The gist of this article is that hybrid cars:

  • Have everything that can go wrong with a petrol car plus everything that can go wrong with electric cars
  • Don’t burn much less fuel that a modern turbo-diesel or even small petrol car
  • Have a huge carbon footprint in the manufacture of all those extra components
  • Are uneconomical to own and operate

Most importantly, fully electric cars are practical today and don’t suffer these drawbacks. Electric car technology presents a massive opportunity for Australian technology, manufacturing and the economy.

I also explain how solar powered cars are a practical reality for many urban commuters.

For those who do not subscribe to Crikey, the article can be downloaded here.

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.