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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.
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
And then there's something else, Telstra:
And then there's Channel Nine:
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?
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.
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
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.