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Oz High Court Hears Landmark TV Guide Copyright Case
Posted by
kdawson
on Sat Oct 18, 2008 06:55 PM
from the just-the-facts-ma'am dept.
from the just-the-facts-ma'am dept.
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."
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News: TiVo-Like Service Coming To Australia 121 comments
rosy writes with good news for Australian television watchers: "CNET.com.au is reporting that a TiVo-like service will be available in November this year. Dubbed ICE ("Intelligent Content Engine") and developed by Peter Vogel, the technology will be built into set top boxes and personal video recorders to skip ads or lower the volume, view electronic program guides, etc. The article states that the service will cost $2-3 per week with the service launching initially in Sydney, Newcastle and Wollongong."
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Simple (Score:5, Informative)
Re:Simple (Score:5, Insightful)
a relevant and insightful first post? i'm shocked.
honestly, how can the TV network claim copyright over a TV schedule? copyright law, like patents, were created to stimulate innovation & creativity and encourage individuals to contribute to society with copyrighted works or patented ideas. so artistic/creative works are given copyright protection, just as original inventions are given patent protection.
but a simple program schedule does not contribute anything meaningful to society. it is not a cultural work. it's a list of factual information--something which no person or organization has the exclusive rights to. if this were a compilation of program synopses/reviews plagiarized from the TV network's writers, that would be a different story. but this is like saying you hold the copyright on a news event, and no one else can report on this event.
i think there was a similar case to this a few years ago involving the MLB and baseball stats. i don't know how that case turned out, but both claims are equally groundless.
Parent
Re:Simple (Score:4, Insightful)
but the same could be said of a set of mathematical formulas, a chronological list of all U.S. presidents, a compilation of state laws, a set of driving directions, etc. it doesn't matter how much skill or labor was employed in making such lists, no one should be prevented from duplicating such information. copyright was never meant to give people a monopoly to factual information. otherwise, journalism would violate all sorts of copyrights.
i mean, should i have to pay the networks a licensing fee just for telling a friend that the news comes on at 10:00 PM? and if a corrupt politician compiles a list of all of his criminal activities, then could he prevent the press from publishing those facts because he holds the copyrights to that compilation of his misdeeds?
the premise of this case is absolutely ludicrous. copyrights should only be granted in a way that is in line with the original spirit of copyright legislation. that is, the copyright system should be used in a way that benefits society by encouraging creative cultural expression. listing facts or technical data, no matter how much work was put into it, does not warrant protection under copyright law.
if the TV network put the program schedule in a creative layout design, or they included a synopsis for each program, or perhaps published the schedule as part of an almanac of all TV programming of the past decade, and IceTV was reproducing these original customized presentations of the program schedule in their entirety, then a copyright claim could be made. but simply listing the times each program is scheduled to air at is not copyright infringement--especially if IceTV uses their own schedule streaming protocol and custom data format, thus creating an original presentation of the schedule.
Parent
Re: (Score:3, Insightful)
But all your examples are things that have already happened! Th
Re: (Score:2)
But a schedule is a list of decisions that have already happened.. a decision was made that show "A" will air at such and such time.. It is true that things may not happen as scheduled, but that doesn't mean that the list of decisions are a creative work of fiction..
Scheduling itself, can be creative.. for example placing a struggling show in between two that are doing well.. but I don't see that the actual schedule is..
Airlines also have schedules, and yes there has been money to be made with this informa
Re: (Score:2)
I've never heard that non-creative works cannot be copyrighted. You certainly don't offer any references or proof. All of my techie books have copyright notices in them. From the Wiki,
"Copyright may apply to a wide range of creative, intellectual, or artistic forms, or "works".
"Intellectual" should certainly be emphasized.
In this case there may be lawyers who will push the bounds of copyright beyond the more obvious. If there is money to be made and taxes to collect then governments may very well create new laws (assuming the plaintiffs lose) to appease unbounded capitalism (the plutocracy).
Re: (Score:2)
Incorrect. Australian copyright law allows software to cover the code and 'required data.' The rulings that did this came from a case where a guy reverse engineered an AutoCAD hardware lock and started selling work-alike versions. The case went back and forth but AutoDesk eventually won. It meant that schedules, bus timetables and the like could hold copyright on the data.
Re:Simple (Score:5, Funny)
You're wrong. Australian law, not US law, applies in Australia - and a collated list is considered a creative work & copyright applies. There's a landmark case that set the benchmark for this, involving a 3rd-party company (in India? The Philippines?) copying phonebooks to provide an alternative forward/reverse phonebook.
Regardless of that, why isn't a schedule creative? Sure, a list of facts may not be, but a schedule probably is. Events on a schedule aren't facts until they actually happen in order and on time; until then it's a creatively-envisioned list of events with a high probability of occurring. Besides, Australian TV guides are mostly fiction anyway, which is covered by copyright. An entry like this:
will most likely turn out to be:
Note, not even the start time is correct, so it's definitely a work of fiction. It'll still be hosted by a flouncy trollop in a breezy sundress, so Dad can get a little stiffy while watching TV with the kids, though...
Parent
Re: (Score:3, Insightful)
Re:Simple (Score:5, Insightful)
mustard mayonaise swiss cheese
butter sugar spam
This haiku grocery list (C) 2008, all rights reserved.
Parent
Re: (Score:2)
This haiku grocery list (C) 2008, all rights reserved.
No, no, no! It's not a haiku unless it has a seasonal word.
bacon eggs bread milk
pumpkins mayonaise swiss cheese
butter sugar spam
There, fixed it for you!
(You need to get spam at the grocery? I have all the spam I need; give me your email address and I'll send you some).
Re: (Score:2)
Many supermarkets print up charts of where various types of groceries can be found in their store. Could you copyright that? If not, why not?
Re: (Score:2, Insightful)
Like juiceboxfan said, I also think its stupid to prevent the publishing of a schedule, but just calling it a list is a reductio ad absurdum.
Re:Simple (Score:4, Insightful)
Reductio ad absurdum [wikipedia.org] is a highly logical and respected technique for making an argument. Given the context in which you used the phrase, I assume you meant it as a logical fallacy, but it's not a fallacy. Perhaps you meant that it is an oversimplification?
Parent
Re: (Score:2)
That is, the schedule itself, not any synopsis or description of the individual programs.
Just because you write something in a list and then add a date and time doesn't make it a creative work.
Re: (Score:2, Interesting)
Re: (Score:2)
except that originality (creativity) has a different meaning in copyright law to the everyday notion of originality.... I personally don't like the use of copyright to police unfair competition, but that's just how copyright works (in Australia at least).
So in Australia you're allowed to copyright a list of facts, based solely on the fact that the jackass that typed them in (skill) spent time (labor) doing it?
Re:Simple (Score:5, Informative)
So in Australia you're allowed to copyright a list of facts, based solely on the fact that the jackass that typed them in (skill) spent time (labor) doing it?
Yes, unfortunately, the courts have allowed copyright in such circumstances. In fact the seminal US case on the issue (Feist) has a corresponding Australian case (here [austlii.edu.au]) going in exactly the opposite direction.
If the High Court is sitting with all 7 judges, however, it may be because they are thinking of changing this, however the way the case has been argued so far this might not arise - the defendants have not disputed the existence of copyright, they have merely disputed that their activities infringe on that copyright.
By the way, I considered a business using the TV guide data in Australia over 10 years ago. Channel 9 (alone) refused to cooperate, and I decided the risk of being sued by them in exactly this way was too great.
Parent
Re: (Score:2, Insightful)
Did you even read the summary?
Did you even pass 5th grade english?
Just because you write something in a list and then add a date and time doesn't make it a creative work.
When we're discussing a list, then yes, you're correct. I can put:
And it's not particularly creative.
But we're not talking about a list, we're talking about a programming guide. These are not just a random assortment of crap thrown together because it looks good, playschool follows sesame street because that's the natural progression for children*, then some cartoons that get progressivly childlike as the older children go
Re: (Score:2)
Re:Simple (Score:4, Insightful)
Why would a schedule not be considered "creative"?
Because there is no creative element.
There are people who are paid to do nothing but come up with schedules.
There are people who are paid to do nothing but dig ditches. Is ditch-digging considered "creative" now too?
Just because someone is paid to do something, doesn't mean it's creative.
Parent
Re: (Score:2, Interesting)
You might be coming from a US position which has gone a different way on compilations, referable to different constitutional arrangements.
It's trite law now outside the US that things like betting coupons, train timetables, etc, get copyright protection.
The basis for protection is the skill and labour that went into them - the fact that you've created them, not a sort of artistic creativity.
Re:Simple (Score:5, Insightful)
Absolutely correct. Copyright law in the US is based on the idea of a utilitarian social contract. "In order to promote the progress of science and the useful arts" as the US Constitution puts it.
Outside the United States, copyright law is largely based on Lockean moral rights. Workers have a right to their work product. Under this theory, copyright can protect works with little to no creativity.
Although I am largely a believer in Locke's natural rights, I do not believe that it is a good idea to apply them in the field of Intellectual Property. I favor the general US approach, although I have many issues with the way the US Congress has implemented IP laws.
Parent
Re: (Score:2)
Re: (Score:2)
First of all it is creative on the part of the broadcasting company not the TV guide publishers. So using your logic the copyright should belong to the station broadcasting and the guide people have no standing.
Re: (Score:2)
So if you had, say, 24 hours of programming to fill you wouldn't give it any thought?
Nice try. [wikipedia.org]
There are people who are paid to do nothing but dig ditches. Is ditch-digging considered "creative" now too?
Nice try
Sorry, I don't think I understand you. Are you now trying to claim that you didn't say that working on anything is creative?
You distinctly said that people are paid to work on something, therefore that is creative. If this isn't what you meant, then you need to explain what you *did* mean, rather than trying to escape by (rather feebly) claiming you didn't say that.
The bottom line is: If being paid to do something is what defines "creative", then anytime anyone is paid to do something (even di
Re: (Score:2)
Assuming this is true, the "harm" done is negligible if non-existent. TV stations create schedules to increase viewership of individual programs. The purpose of a schedule is to schedule and not to sell as a commodity. Whether it is a legal entity in itself is besides the point. People don't want to be sued for telling their friend that The Simpson's is going to be on TV at 6 oclock on channel 5.
Re: (Score:2)
The other purpose of the schedule, surely, is advertising. You want as many people as possible to know when your TV programmes are on, especially if, like the Nine Network, you're in the habit of shifting all of the good shows around during the graveyard shift.
Re:Creative scheduling exists (Score:5, Funny)
And besides, Nine wouldn't sue, because the Simpsons is on channel Ten.
Parent
Re:Creative scheduling exists (Score:5, Insightful)
Nine is probably suing because when people see the schedule they'll realise that Nine never starts a show at the scheduled time...
Parent
Copyrighting fact was not what they had in mind... (Score:5, Insightful)
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.
Re:Copyrighting fact was not what they had in mind (Score:5, Informative)
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.
Parent
Re: (Score:2)
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 reaso
Re:Copyrighting fact was not what they had in mind (Score:5, Informative)
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...
Parent
Re: (Score:2)
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 probab
Re:Copyrighting fact .. no use Database rights! (Score:2)
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 [wikipedia.org] ) 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.
Re:Copyrighting fact was not what they had in mind (Score:4, Informative)
And then there's something else, Telstra:
And then there's Channel Nine:
Parent
The fallout from this case affects US pilots too. (Score:2, Informative)
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 Defens
Re: (Score:2)
> 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.
Re: (Score:2)
Shouldn't that be an Imperial pain in the ass?
Read before you post... (Score:2, Insightful)
"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?
Re: (Score:2)
Makes sense to me. To automatically record programs using PVRs, the PVR needs to know when the programs are actually being shown. These schedules are difficult to obtain in machine-readable format. Someone who has used a PVR which doesn't come with such a schedule will have experienced this. Which part didn't you get?
fact generators are not fact compilers (Score:5, Insightful)
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.
Do you people even understand... (Score:2, Redundant)
...what it takes to compile these schedules?
Re: (Score:2)
gcc? ;)
special leave transcript (Score:5, Informative)
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 [austlii.edu.au]
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.
Phone Book ? (Score:3, Informative)
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 [austlii.edu.au]
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.
Re: (Score:2, Interesting)
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.
Re: (Score:3, Funny)
Dear mods,
Bacon is never off-topic.
Sincerely,
Everyone
Re: (Score:2)