IceTV cracks Nine, what does it all mean?
IceTV has won its copyright battle with Nine over the television guide, now Adam Turner wades through the High Court's 25,000 word judgement in search of meaning.
After a three year legal battle, the High Court of Australia has ruled in favour of Electronic Program Guide provider IceTV in its legal battle with the Nine Network over the copyright issues surrounding the television schedule.
The conflict revolves around whether on not IceTV has the right to publish the TV guide. One of the main reasons why Nine disapproves of IceTV is that its service works with Personal Video Recorders which let you skip advertisements, such as those from Topfield and Beyonwiz as well as computer-based recorders. IceTV itself does NOT let people skip ads (something the mainstream media often fails to understand). IceTV just makes it easier for these PVRs to record your favourite show, then you can watch it at your leisure and use the PVR to skip the ads. Rather than attack the large foreign makers of ad-skipping PVRs, Nine found it easier to attack the small local EPG provider.
Nine's strategy fits nicely into Freeview's campaign to force/trick/scare Australians into only using Freeview-branded PVRs which have the ad-skipping disabled.
It seems ludicrous that Nine's list of television shows and times (which are often wrong) should be considered a "literary work", but the courts agree that Nine does own copyright over its television schedule as a whole. The legal battle revolves around whether Ice TV's process for compiling its EPG breaches this copyright.
Here's where we can draw on the court's full judgement;
"The initial information to be included in the IceGuide was generated by an employee of IceTV watching television over a period of time, obtaining information about programmes from the Internet and reviewing published Aggregated Guides. In this appeal, no complaint is made by Nine about this process."
So, in other words, some guy got paid to watch a lot of television for a very long time. Nice work if you can get it. So far so good, but Nine's complaint is about how IceTV keeps its schedule up to date;
"In essence, an employee of IceTV would use an IceGuide schedule from a previous day, compare it to a number of Aggregated Guides and, in almost all cases where there was a difference as to the time and title information, amend the IceGuide schedule accordingly."
By only comparing changes in the television schedule, rather than copying the entire thing, IceTV claims it is only drawing on a small percentage of each day's guide. Nine still argues that IceTV is still using a "substantial" part of the guide.
Digging further into the summary, it seems as if the court is actually questioning whether basic facts such as titles and starting times can be count towards "substantial", or even be subject to copyright at all. Even if they are part of a larger body of work which is considered a "literary work". This is the case whether or not those facts are the work of the author. For example, Nine might be the author of the television guide, but it didn't create the name of each movie. Even the details that it did create, such as the starting times, are such basic facts that they shouldn't be counted when deciding if someone has copied a "substantial" part of the work.
"... generally speaking, no copyright could be claimed in a programme title alone and the time at which a programme will be broadcast is a single item of quotidian information... In terms of the distinction between information and creative material, the time and title information is information about Nine's intended future conduct."
The court then goes on to cite the current edition of Copinger and Skone James on Copyright:
"[T]he more simple or lacking in substantial originality the copyright work, the greater the degree of taking will be needed before the substantial part test is satisfied."
Nine kept pushing for "substantial" by claiming that the order in which programs are scheduled is also an important part of the process, but the court knocked this on the head as well;
Counsel for Nine sought to place importance upon the reproduction not only of time and title information in respect of each programme, but also of the chronological arrangement of the time and title information for various programmes. Whether a selection or arrangement of elements constitutes a substantial part of a work depends on the degree of originality of that selection or arrangement. In this case, a chronological arrangement of times at which programmes will be broadcast is obvious and prosaic, and plainly lacks the requisite originality.
There's obviously a lot more to it, but the basic conclusion is;
"Any reproduction of the time and title information in the IceGuide was not a reproduction of a substantial part of any of the Weekly Schedules (or the Nine Database)."
This doesn't open the flood gates for everyone to copy and paste each day's guide to create their own EPG service, but it does mean that IceTV is entitled to continue producing its guide. After three years of legal hell, IceTV can once again concentrate on the task at hand. As IceTV managing director Matt Kossatz said today;
"Today’s news will hopefully shut the door on Nine and open up many other doors for IceTV and our users."
Other Blog Entries written by Adam Turner:
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