Wednesday, 22 April 2009 10:47

IceTV slays Nine in High Court EPG victory: update

Small Australian electronic TV guide provider IceTV has won a historic 'David versus Goliath' victory over one of the country's media giants. IceTV has won the TV program guide copyright case brought by the Nine Network three years ago. Details of the court's decision have now been published.

The High Court ruled in IceTV's favour this morning, bringing to a close a case that's been dragging on for three years. Costs were awarded to IceTV.

Nine had alleged that the process IceTV used to generate its EPG infringed on Nine's copyrighted weekly schedule.

IceTV conceded that copyright did subsist in the weekly schedules, but the court held that there was no reproduction of a substantial part of those schedules.

The court also reiterated the concept that "Copyright does not protect facts or information. Copyright protects the particular form of expression of the information, namely the words, figures and symbols in which the pieces of information are expressed, and the selection and arrangement of that information."

Furthermore, "Copyright, being an exception to the law's general abhorrence of monopolies, does not confer a monopoly on facts or information because to do so would impede the reading public's access to and use of facts and information."

When the judges looked at the content of Nine's weekly schedule, they found that the time and title information was not a form of expression which required particular mental effort or exertion.

What was their reasoning? See page 2.

The title originates with the program maker, not the broadcaster, and there are few practical ways of expressing the time at which a program is to be broadcast. Hence they reasoned that this information was not held to be sufficiently original to constitute a substantial part of the schedule.

It is, however, the information that is of greatest value to an ordinary person planning to watch or record programs.

And this is where the High Court judges came to a different conclusion to their colleagues at the Federal Court. The Full Court concluded that the time and title information was the centrepiece of Nine's schedules, but the  High Court ruled it was not substantial enough.

The judges also considered the "skill and labour" test often applied in copyright matters. While they accepted that Nine's employees did indeed apply skill and labour to programming decisions, there was no significant skill and labour applied to the expression of time and title information.

So how does IceTV operate?

It receives program schedules directly from ABC and SBS, so there's no problem with those channels.

For commercial stations, IceTV uses a list of what was broadcast the previous week as a starting point. It then updates that list using information from at least three published (print and online) program guides.

Details of the process continue on page 3.

(The preparation of the original list of programs in 2004 by recording the times and titles of programs over three weeks was described by IceTV content manager Mitchell Rilett as "torture".)

Program synopses are added by IceTV staff, drawing on reference books and websites.

IceTV wasn't the only winner today. The general public also benefits from a ruling that notes the "extremely modest skill and labour" involved in converting programming decisions into a list of times and titles, and that "baldly stated matters of fact or intention are inseparable from and co-extensive with their expression."

With any luck, this decision will clear the way for the much wider use of information that is already effectively in the public domain such as public transport timetables. For example, if a transport authority publishes such information on its web site, why shouldn't someone be able to use it in an application that runs on a particular type of mobile phone?

IceTV chairman and major shareholder Colin O'Brien welcomed the decision, saying "I would like to thank all our shareholders, our staff, our customers and our business partners. Without their support during the last three years IceTV would not have survived."

"IceTV now looks forward to a successful future bringing both free to air TV and content via various partners to viewers in a way that satisfies viewer demand, whilst embracing the future of digital free to air television in Australia," he added.

The history of the matter is that IceTV had been supplying an EPG for around a year when the Nine Network began proceedings in May 2006 alleging copyright infringement of its schedule.

This development occurred shortly after Nine acquired HWW, a TV guide aggregator and supplier to print and online media.

Please read on.

In August 2007, the Federal Court found in IceTV's favour, but the litigation had already spiked the company's attempt to go public.

Nine appealed the decision, and in May 2008 the full bench of the Federal Court reversed the verdict.

IceTV was granted special leave to appeal to the High Court, which heard the case in October 2008.

Meanwhile, IceTV altered its practices to comply with the Federal Court's ruling.

An effective and comprehensive EPG is key to the effective use of PVRs and similar computer-based products.

There have been reports that the free to air stations will move to a proprietary format for the Freeview digital TV EPG, and only license it for use on devices that do not allow ad-skipping.

This makes the availability of an independent EPG - even if it is available only on subscription - important for many ordinary viewers.

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Stephen Withers

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Stephen Withers is one of Australia¹s most experienced IT journalists, having begun his career in the days of 8-bit 'microcomputers'. He covers the gamut from gadgets to enterprise systems. In previous lives he has been an academic, a systems programmer, an IT support manager, and an online services manager. Stephen holds an honours degree in Management Sciences and a PhD in Industrial and Business Studies.

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