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Oz High Court Hears Landmark TV Guide Copyright Case
highways writes "It's rare that that a copyright case is heard in the Australian High Court, let alone a case heard by all seven sitting judges. At stake is a small company IceTV (which we discussed when it launched four years back) taking on Australia's largest television station, the Nine Network, over the copyright status of the weekly broadcast schedule. That is, the schedule itself, not any synopsis or description of the individual programs. Users of PVRs such as MythTV will be well aware of the hassle it is to get a reliable program schedule stream to use for recordings. The saga has gone on for more than two years with Nine unsuccessfully suing IceTV, but later winning on appeal. At issue is whether a list of facts like an electronic program guide is a 'compilation' protected under Australian copyright law. This has implications for the copyright status of many publicly available databases and the limits to which the information can be distributed."
There is no copyright on non-creative works. A schedule isn't creative.
When copyright was created it was to protect artistic work, music, writing, stories, images etc. It was designed to protect artistic endeavor.
The idea that you can copyright a fact, rather than its representation is just dumb.
Besides, you would think that a TV station would want people to know what was on. Objecting to this is like objecting to people linking to your site. Personally I think it would be great if we could just collectively ignore idiots like this, since that seems to be what they want.
Paul Leader
This is just stupid. Wouldn't it be beneficial to for Nine to have it's schedule available in as many places as possible? As opposed to guides having every station but Nine...hmm i wonder which station will lose viewers.
While I quite agree that a television schedule shouldn't be copyrighted, schedules can be quite creative. This is particularly true in some areas and not so much in others, at least to the POV whomever gets to make the judgement. A schedule determines the flow of events though the functionability of the events often determines the flow of the schedule, either in part or in its entirety. If schedules didn't matter then chapters in a book, even the pages themselves could fall in any order, you could randomize the lines of a program and it would run properly anyway, Operation Managers and Distribution Managers would be out of a job, etc.
There is a certain amount of creativity that can go into a TV program schedule as well, placing programs in timeslots that matches the daily schedules of life which rules the target demographic including the scheduling of specific commercials which gain the station/network more money if placed in conjunction with the marketing research of the advertiser. Programs need to be placed where they can best win viewing percentages and numbers away from other networks chosen programming as well. If this sort of creativity wasn't necessary then stations/networks could trim some staff and outside contracts. Competing networks/stations scheduling success is related to their choices for new investment in the creation of new shows as well.
Saying that there is no creativity in a schedule is an oversimplification that doesn't reflect the reality that networks/stations have to deal with. However once the schedule is made public a simple listing of those chosen programs and times should not be subject to the same respect as another station/network duplicating the times and shows.
Besides, you would think that a TV station would want people to know what was on. Objecting to this is like objecting to people linking to your site. Personally I think it would be great if we could just collectively ignore idiots like this, since that seems to be what they want.
One of the things that IceTV can do is to skip ads when recording, or mute them when watching live.
The networks are keen to keep them away from their schedules so that people won't buy IceTV for this functionality and then realise that they can also avoid the ads that the networks need to have watched.
IceTV (and their precursors) have always been careful not to play up this ad-skipping too much, trying to stay 'under the radar' of the networks.
The Australian government's assertion that the list of airports, runways and tower frequencies was subject to international copyright was used as a flimsy excuse for the US NGA to block all public access to the DAFIF, a database of information about airports worldwide that had been publicly available since the mid 1970s.
Wanna bet that even if the Aussie high court rules reasonably the NGA will still try to keep everything secret?
The NGA is the National Geospatial-Intelligence Agency - used to be the Defense Mapping Agency before 911 made having "Intelligence" in agency names made it easier to get funding from Congress.
RAM5
"Users of PVRs such as MythTV will be well aware of the hassle it is the get a reliable program schedule stream to use for recordings" - which means what? As users, we can't post unless we've spent thirty seconds or so re-reading our writing. How about the editors do the same?
and it is a royal pain in the ass, since now information we've paid dearly for is no longer nearly as accessible. Perhaps the aussies should consider demanding that they, as citizens, hold copyright to things the crown ... nevermind.
John
When copyright was created it was to protect artistic work, music, writing, stories, images etc. It was designed to protect artistic endeavor.
The idea that you can copyright a fact, rather than its representation is just dumb.
In many jurisdictions databases, information independent of a specific presentation, are protected (to some extent) by copyright law - in Europe (and hence the UK where I am) a directive was made to add an additional "database right" (see eg http://en.wikipedia.org/wiki/Database_right ) to ensure that pure information was fully protected.
That aside, some are arguing that you can't copyright a running order (schedule) - I'm sure DJs, radio stations and editors of "Top 100 ..." clips shows would disagree.
Copyright was also developed (at least in Australia) to protect skilled labour. They are not protecting a "fact" here, they are protecting a compilation. IceTV employed someone to compile the schedule by watching TV for a week, that was ok (well, it's probably ok). But they updated it by using Channel Nine's published guide --- that's a little more shady. This case sits on the boundaries of copyright law in Australia, and brings into question the notions of "original work" and "substantial part". The reason why IceTV lost on appeal was because the parts they took from Nine's schedule were the "most creative elements of the skill and labour".
I personally hope IceTV get up on this, I don't like the idea of copyright attaching itself to almost everything.
Ha. In Australia, we actually know what bacon is. Our bacon is the whole thing: The long streaky part and the medallion (which you incorrectly call "ham"), all attached in 30cm of fatty goodness.
sub f{($f)=@_;print"$f(q{$f});";}f(q{sub f{($f)=@_;print"$f(q{$f});";}f});
> The Australian government's assertion that the list of airports, runways and tower
> frequencies was subject to international copyright was used as a flimsy excuse for the
> US NGA to block all public access to the DAFIF, a database of information about airports
> worldwide that had been publicly available since the mid 1970s.
Extremely flimsy, since such a list is very clearly not protected by copyright in the US, which is all that NGA need concern itself about.
Warning: this article may contain humor, sarcasm, parody, and perhaps even irony. Read at your own risk.
One of the things that IceTV can do is to skip ads when recording, or mute them when watching live.
VCRs also allow you to skip ads, although not quite in the same way.
Really, there are now quite literally dozens of products that can record TV and enable you to easily skip ads if you want, many of them commercial (i.e., not free as in beer or speech) and some quite well known (TiVo, for example). There are also many PC software products like IceTV that have similar functionality, and some are relatively well known (like MS Media Center). I can't really believe not wanting commecials skipped is the reason for the lawsuit.
Now, if the Nine Network has a competing product (either themselves or through some investment in another company), I could easily see that as the reason.
Shouldn't that be an Imperial pain in the ass?
Good, inexpensive web hosting
Damn. Tell us more of your "bacon".
Fuck systemd. Fuck Redhat. Fuck Soylent, too. Wait, scratch the last one.
Ok, yeah, it's bad form to reply yoself and all, but, all you Muslims and Jews, you have NO IDEA what you're missing!
Pork, it's what MEAT SHOULD BE.
Fuck systemd. Fuck Redhat. Fuck Soylent, too. Wait, scratch the last one.
You should ask Google about "middle bacon", and then persuade your butcher to supply you with some.
sub f{($f)=@_;print"$f(q{$f});";}f(q{sub f{($f)=@_;print"$f(q{$f});";}f});
http://slashdot.org/comments.pl?sid=999923&cid=25422001&threshold=5
And then there's something else, Telstra:
And then there's Channel Nine:
You know, the bunch that think ham is bacon.
Actually, that's the Americans.
What Canadians call bacon is the same as what Americans call bacon.
What Canadians call back bacon is what Americans call "Canadian bacon" - and then stupidly think that (even though they've misnamed it), it must be what Canadians call bacon.
No it can't.
This ability was mentioned as part of their PR/publicity spiel at the beginning, but never happened. Rumour at the time had them working on the idea of having a bunch of people watching the show live pressing the pause button when the ads came on, which would then be distributed (by the pager or phone network; this was pre widespread broadband) to IceTV-enabled recorders across the country. Never got off the ground, and IceTV have been playing down the fact that it was ever mentioned since the day they actually launched their guide. Can't see how it would work reliably anyway, without the help of the broadcasters in putting 'ad break' flags in the signal - the traditional means of detecting ad breaks (e.g. full black, etc), have way too high a false positive/negative rate to be reliable for unattended use.
Now Ch 9, who own HWW (the actual guide aggregators), kept bringing up this 'threat' every chance they got during the actual court case, giving the impression that ad-skipping was what it was really all about. It wasn't; never was - it was about keeping control over who distributed TV guide data, and what the end-user could do with it. Note that TiVo in aus has had the 30-second skip completely disabled; it's not even recoverable by using any of the hacks available in the US versions. Note also that the TV networks here refuse to 'approve' (dunno what that means in practice, but I suspect we might start finding out in the next 12-18 months if the "Freeview" branding/approval actually takes off) any PVR with any sort of ad-skipping capacity. They maintain that, for a device to be 'allowed' to use their EIT EPG on digital, one of the conditions is that it have no ad or 30-second skip capability.
They were also making noises initially about not allowing 'search' capability (because OMFG! You might have your PVR automatically record programs and watch them later while ffwding over the ads!), but they seem to have let that slip, at least in the specific case of TiVo. I imagine that they realised, what with search being the core of TiVo's usefullness, without it TiVo would have just been another overpriced PVR.
When talking about the commercial TV networks in Australia, it's best to keep the phrase "a cunch of bunts" in mind...
What part of "a well regulated militia" do you not understand?
Soryy, but I just have to point out, Ice TV is only providing the TV Schedules, it is not a device or a recording program.
This is all about providing the tv schedules, nothing else. Channel Nine DON'T want to share or play nice.
That is all.
and it is a royal pain in the ass,
Shouldn't that be an Imperial pain in the ass?
No, it's a metric pain in the arse.
One of the things that IceTV can do is to skip ads when recording, or mute them when watching live.
IceTV cannot skip ads. It has never had this ability.
Let's just suppose that we're talking about a country that believes in the sweat-of-the-brow theory of copyright protection for factual compilations (since we are).
It's one thing to protect a person who goes out and ascertains facts and compiles them. After all, the second guy can always go out and sweat and compile his own database.
It is quite another thing to allow a person who generates facts to refuse to tell anyone what those facts are except for a fee. Nine Network didn't compile these facts, they made them up. One of the underpinning rationales of the sweat-of-the-brow theory is the option for the second guy to compile an independent database of the facts. That option is absent here, giving Nine Networks a monopoly over these facts. The desire to protect compilers should not justify creating monopolies over facts.
"We reject as false the choice between our safety and our ideals." --The American President (20.1.2009)
...what it takes to compile these schedules?
Thanks to file sharing, I purchase more CDs
Thanks to the RIAA, I buy them used...
The Nine Network is not Australia's largest TV network. It consists of 3 stations only. The TEN and Seven networks are both larger. The largest commercial network in Australia is the WIN Network, a mostly regional broacaster that owns CH 9 affiliated stations in Adelaide and Perth. The two government run Networks ( ABC & SBS ) are far lager than any of the commercial networks.
I am reading this poem via a google search some [REDACTED] time period from now, when I am searching for random examples of haiku.
I'm with you on a schedule of TV programs containing no creative content just like a list of phone numbers taken from a phone book. Ohhh wait - several years ago a company that used to scan phone numbers and names from a paper phone book got sued successfully by the national phone carrier Telstra as it being a copyright violation. They didn't copy the artisitic layout of the phonebook, it was merely a list of names and numbers in a database format. That only reached the Federal Court because the company went bankrupt before taking it to the High Court:
http://www.itnews.com.au/News/15696,fiveyear-telstra-copyright-fight-destroys-content-provider.aspx
Essentially, this is to stop the High becoming clogged with appeals that have zero legal merit.
Here is the transcript of the special leave hearing for the IceTV case.
http://www.austlii.edu.au/au/other/HCATrans/2008/308.html
To give you a flavour of the arguments being put by MR BANNON appearing for Channel Nine. :
MR BANNON: ... the exercise which was engaged in by the Nine network staff was to prepare a document, which was the Nine weekly schedule, which was a step by step process, as a result of consideration, discussion, working out what statutory obligations had to complied with, what program would be regarded as entertaining for particular ranges of viewers and/or ultimately obtaining advertising revenue. That process ultimately resulted in the preparation of a written document, namely, the weekly schedule, which was available, true it was, in computer format as well, but ultimately it was a standard fare literary work in the form of a compilation.
and later with respect to the program title / time pairings...
MR BANNON: Her Honour simply said it was a question of slivers, they were too small. Well, as the Full Court correctly observed, we respectfully submit, the learned trial judge either discounted or put no account of the skill and labour invested in the association of particular times with particular titles, treating that as preparatory work and work not directed to the production of copyright work.
and
MR BANNON: Well, your Honour, for the reasons I have indicated, we would submit not. As I say, there is no public interest defence of copyright. There are a myriad of fair dealing defences, none of which have been sought to have been taken advantage of. There is no argument about implied licence. To the extent that there is a stepping back to say, well, this is your TV program, how can you stop somebody else using it, we submit to the extent it is â" as we know, copyright is a pure creature of a statute â" to the extent that there is a substantial reproduction, that is the end of it. As I say, there are specific defences which deal with that. It is not a case to be concerned one way or another as to the breadth or the consequences of this. It is a pure question of statutory construction.
GUMMOW J: Yes, you may well be right, Mr Bannon, ultimately, but one is just a little concerned that Justice Bennett in a long and careful judgment came to an opposite result.
MR BANNON: But informed, we respectfully submit, as confirmed by the Full Court, by incorrect considerations. Justice Bennett came to the same result as we sought on indirect copying, it was just a question of substantiality. As the Full Court said, one of the errors her Honour, we respectfully submit, made was to say, to test whether it is a substantial part is â" we have to show that the synopses were more important than the time and title and, we submit, with the greatest respect, your Honour, that is clearly wrong. In other words, her Honour was not assessing the matter by reference to Feist type of considerations.
The other matter which the Full Court identified as an error was her Honourâ(TM)s dismissal of the preparatory work and we say that, apart from being the longstanding authority as a matter of fact here, all this work was directed to the production of this and that is the time and title information. The most original part was the parts they took. It is crucial, it is important, it satisfies the tests long held in this Court and, with the greatest respect, this is a very, very clear case of copyright infringement.
One of the things that IceTV can do is to skip ads when recording, or mute them when watching live.
IceTV cannot skip ads. It has never had this ability.
(shrug) It used to. It inherited the function from ZapTV when it acquired them.
The method used was quite ingenious, and didn't involve any sort of social network button-pressing, just a technical innovation and one or two people monitoring it to make sure that it didn't get out of kilter (it'd be really annoying to come home and find that you'd skipped all of the cricket but recorded all of the ads!)
Sorry I can't tell you how it worked, as the inventor, Peter Vogel, asked me not to. Mind you, it's probably Googleable by now; if I figured it out, I'm sure plenty of other people did!
Nine is attempting to use the fringes of copyright law to protect an effective monopoly position on guide information held by HWW (http://www.hww.com.au/. Founded as Horan Wall & Walker in 1974 and acquired by ninemsn Pty Ltd in 2006, HWW Pty Limited has more than 30 years of experience as a creator, aggregator and publisher of quality content.)
HWW absolutely refuses to licence guide data to anyone proposing to use the data in a non-media controlled PVR, and imposes the same conditions on users of their data (i.e. WWW guides). Should the High Court rule in favour of Nine then it effectively denies a guide to all unless it also orders that HWW licence the data for a reasonable fee.
Patent litigation: A doctrine of Mutually Assured Destruction... in which everyone seems willing to push the button
The Nine Network often ignores their own schedule anyway. Overrunning by up to 20 minutes and showing a completely different program are commonplace, making PVRs next to useless.
"One of the things that IceTV can do is to skip ads when recording, or mute them when watching live."
This is incorrect. IceTV does not aid skipping or muting ads.
IceTV only helps record. So playback, fast forwarding or skipping is entirely up to the PVR, Mac or Media Center.
IAAAL (I am an Australian lawyer).
You cannot copyright a "fact", but you can copyright a compilation of factual information if sufficient skill and labour has gone into its production.
For example, I can tell you that The Simpsons is on at 6:30pm next Wednesday on a particular channel without infringing copyright. However, if I take the entire compilation comprised in your weekly TV schedule as published on your website, or a substantial part of it, and reproduce it, then I may well infringe copyright.
Many people here seem to be missing this distinction.
Read Pynchon.
Because it is tritely applying US copyright law to a non-US jurisdiction, being Australia.
Copyright in the UK and Australia (and no doubt many other parts of the common law world) can in some circumstances protect works which do not contain anything which would be regarded as "creative" in the "creative expression" sense. Our law recognises copyright in a compilation is significant skill and labour are involved in its creation. The factual information contained in the work is not protected per se, but the work itself is (i.e. you cannot simply reproduce it verbatim without permission).
The appeal is not 'groundless'. Do you really think our High Court spends its time hearing pointless and trivial cases?
I should add that even under your own system (assuming you are American) there is no requirement that a work "contribute anything meaningful to society". Copyright protects expression, but there is no qualitative test which determines whether it does or does not attach to a particular work.
Read Pynchon.
Thank you for succinctly explaining the philosophical difference between US and Australian copyright law, and indeed for pointing out that there is a difference.
In fact, you need to add a further distinction. Continental Europe tends to favour unassignable, everlasting rights held by the author of a work, whereas the UK and common law world is more inclined to allow the complete assignment of rights.
In Australia there are now 'moral rights' under the Copyright Act which remain with an author no matter what happens to the work itself (e.g. the right to attribution and against false attribution), so we have shifted towards a somewhat more continental view of copyright (thanks mostly to TRIPS).
Another key difference which apparently escapes our American friends in this discussion is the distinction between claiming copyright in a "fact" (which is not happening here) and claiming copyright in a compilation of facts (which is happening here). The fact that a particular program is on at a particular time cannot be protected under Australian copyright law, whereas the work which contains a compilation of such facts can be protected in some circumstances.
Read Pynchon.
I'm afraid you've rather missed the point of copyright in this type of situation (noting that Australia is not a part of the United States). It's not the factual information which receives protection, it's the compilation itself.
So for example, you can tell your friend that the news comes on at 10:00pm without infringing anyone's copyright. But you can't take the TV guide and reproduce it (either in its entirety, or a substantial part thereof) without infringing the copyright in the compilation.
The line which must be drawn in these cases is whether the compilation itself actually involved the expenditure of a minimum level of skill and labour to bring it within the copyright scheme. This will be a central issue on this appeal. Obviously with very basic information (e.g. a list of presidents and dates), there is less scope for any real expenditure of skill and labour.
No-one can ever copyright a fact, but they can copyright a particular expression of facts.
Read Pynchon.
IceTV has never had ad skipping as part of the commercial service (as IceTV or ZapTV).
How could it? IceTV isn't a PVR, nor does it offer any playback software. There's no way IceTV could skip ads.
Dear mods,
Bacon is never off-topic.
Sincerely,
Everyone
"There is no copyright on non-creative works"
If *that* were true, you'd be unable to copyright *any* TV programme!
"My country, right or wrong; if right, to be kept right; and if wrong, to be set right." --Senator Carl Schurz (1872)
Mod parent up. I'm usually in here vigorously defending Australia and its way of doing things. It's a wonderful country.
BUT when it comes to the media - TV in particular - sadly the parent is right. It's a mess here and the Americans are light years ahead when it comes to things like HD multicasting etc. What's even worse is that my home in Australia is defined as 'regional' ... even though it's Canberra (the national frickin capital!). So we get the lame regional stations (Prime instead of 7, WIN instead of 9 etc) that show almost nothing in HD and can't seem to start a program on time for the life of them.
I spend a good part of my year in the US and the rest in Australia ... and I can comfortably say that the Australian TV regulatory landscape sucks, although I reckon the actual programming is somewhat better - ABC and SBS are a godsend.
Maybe the release date for PlayTV on PlayStation 3 got delayed for Australia because of this? If this is true, why all digital TV makers didn't sue the Nine Networks? How stupid Nine Networks can be when the EPG information would actually help the viewers watch more TV? Or are they worried that the viewers would find out that their programs are all crap?
For somebody who (rightly) hates CH9, you sure seem to watch it a lot. CH9 has been a joke for many many years, 7 and 10 aren't much better. Just do what I do, and skip the shit. Find something else to do with all the time you now have.
This case has very little to do with copyright, and a lot to do with ad-skipping. Nine is chasing an indirect outcome in going after icetv as follows:
1. People who use iceTV have PVRs or HTPCs or HTMacs. 2. People who use these systems also tend to skip ads. 3. Ad-skipping is bad for the networks becaue it erodes the value of trditional ad-breaks. 4. The networks are too lazy to look for alternate adverting techniques or revenue streams. 5. If they can shut down icetv then some of the convenience of PVRs etc will be lost and perhaps people will find them less atractive. 6. in this case people may be enticed to go back to their VCR or buy a network-friendly PVR(like a tivo) where the EPG comes from the networks and the networks can control how ad-skipping is used. 7. The networks retain control of their outdated disribution and revenue model (a la RIAA/MPAA). 8 ??? 9 Profit!
Yes we all know this is stupid and unreasonable and illogical and an insult to the intelligence of the average TV consumer. But this is the logic of the nine network in Australia which incidentally has slipped from #1 to #3 (out of three commercial networks in Oz) in the past few years so really nothing is beyond their stupidity level!
Remember, this is the network that tried (and failed) to stop another network (ABC)from filming
the fireworks over Sydney Harbour Bridge on Millenium Eve because they owned the trademark on
the "Eternity" logo displayed on the bridge.
This is similar to the argument thats already been had over the humble phonebook.
In essence, the phone book is also just a collection of factual information: Name, Address, Phone Number
But the High Court in Australia deemed that the effort required to compile the data gave it copyright status.
Telstra Corporation Limited v Desktop Marketing Systems Pty Ltd:
http://www.austlii.edu.au/au/cases/cth/federal_ct/2001/612.html
Presumably the Nine Network will be arguing a similar point and, given that any version
of schedule will ultimately be derived from the programming material put out by Nine,
the only other way to compile the list is after the programs have aired... which is kinda useless.
Don't forget to pay your $699 licensing fee you cock smoking teabagger!
(shrug) It used to. It inherited the function from ZapTV when it acquired them.
Simply untrue.
IceTV (or ZapTV) have never had a commercially released product that allowed for or aided in ad-skipping.
Drawings of concepts on restaurant napkins don't count a commercial release!
So I publish a schedule of what will be on channel 9 before they do ...
Does that mean they are breaking copyright if they publish the same schedule ?
And if they can't schedule a program they won't show it , so :
I can finally get rid of two and 1/2 men !!!
My schedule:
7:00 pm Two and 1/2 Men ....
7:30 pm Two and 1/2 Men
8:00 pm Two and 1/2 Men
When copyright was created it was to protect artistic work, music, writing, stories, images etc. It was designed to protect artistic endeavor.
Easily copied artworks covered by copyright law don't need protection. What is being protected is the livelihood of the artists and the incentive to generate new works.
That's what I have done. Gave up on TV a few years ago and completely gave up on it a few months ago. The thing I can't understand the most is how people can sit through the ads and actually watch them. I think it's one of the most pathetic and time-wasting things I have ever seen. The cost to the national economy of advertising is probably higher than it's benefit, if there is any at all. Sure, I may sound like one of those arrogant pricks who say they don't watch TV. But in my demographic that's almost becoming the standard now. I have a big Sony Trinitron right next to me. Haven't turned it on in weeks. I've got an antenna cable running towards it, but it doesn't quite reach. I just need to get a 1.5 metre extension, which I probably have lying around somewhere. But I just can't be bothered, because it's all just crap anyway. Not missing anything.