IceTV analysis

The blogosphere is great when it works... Kim Weatherall has saved me the heavy lifting involved in needing to quickly dissect the IceTV v Channel Nine legal judgment I mentioned yesterday, in the dispute about the copying of TV programme guides in Australia.

"There’s a couple of reasons why Nine (and other channels) are keen to control this information: first, because they license it to lots of people (presumably for money), and second, because control means they can impose licensing conditions on use of the information. And that is important because personal/digital video recorders (PVRs/DVRs) need programming information to work. If you can control use of the information, you can start to control what functions will be allowed on these devices (subject to market power type stuff). And that means you can impose some limits on functions like ad-skipping. Which of course is something that Free to Air channels are very concerned about...

So, what do we think?
In summary? A judgment that is consistent with the trend of Australian authority, and entirely consistent with the reasoning of the (identical) Full Federal Court in Desktop Marketing. But a judgment which also illustrates how far away, in some respects, Australian copyright law is from copyright law in other countries, including the US (with its concepts of thick and thin copyright), and the UK now that the UK has the Database directive. And a judgment that emphasises that Australian copyright law truly does protect information, and not just expression (the judgment is notable for not even talking about that issue). Those would be my preliminary thoughts...

I’m inclined to think that the most interesting aspect of the judgment is how it builds on the Desktop case. For those who are not copyright geeks, Desktop is the 2002 decision of the Full Federal Court which held that a person who copy-typed the White Pages into a database and distributed that was infringing copyright. Importantly, it held that sweat-of-the-brow compilations are protected copyright works in Australia. But in infringement terms, it really was a pretty simple case: it involved wholesale copying.

Where IceTV different is [on the facts and arguments accepted and focused on by the courts - ie on the assumption that the initial template of the programming guide was produced in a non-infringing way] is that in this case, the company copied bits of the compilation - basically, the time and title information of updates to the basic program guide. They did this repeatedly and consistently, but these were, in the end, a series of bits of information necessary to keep the information current and correct. What the judgment of the Full Federal Court essentially says is that if that information is important enough, then taking it can infringe. This approach, I think, potentially gives quite ‘thick’ protection to factual and other elements of compilations...

So the issue is: are you copying the program guide when you write down what was broadcast? Or has the causal link between the original and your version been ‘broken’ by the fact that you are writing down what was shown, not copying from the compilation? Now, that’s a hard question. I don’t think it’s obvious at all. To address it would require delving into some quite tricky issues.

So it’s very notable that the Full Court says, in effect, nothing about that argument...

What are the implications?
For the broadcasting area, obviously, the implication is that pretty much no matter what you do (and IceTV really did do quite a lot to try to avoid copyright infringement here, on the facts found by the trial judge) - you simply cannot produce a television program guide without the cooperation of the broadcasters. Maybe from a policy perspective it’s a good thing that broadcasters get to license (and get to get paid) for this stuff - in the sense that licensing it clearly is a part of their business model.

On the other hand, it has some pretty strong implications for related markets. As I mentioned at the start, the obvious one is the market for DVRs/PVRs. If we do end up with less fully-featured devices in the Australian market (which seems to be the situation now, at least) - well, you know what to blame. Copyright law, of course (and the broadcasting regulation system which has given, and continues to give, such power to the free to air channels)."

Update: See also What Are You Missing Out On? Big Media, Broadcasting, Copyright and Access to Innovation by Kathy Bowrey (2007) for an interesting academic perspective on copyright's influence on the development of digital broadcasting services in Australia.