May 2008

Simon Rumble expresses concern that the ruling in IceTV may be far-reaching indeed:

To my non-lawyerly eyes, this judgement seems rather far-ranging. It seems that basically any collection of data can now be covered by copyright, no matter how you recreate it. …

For example, let’s say I wanted to set up a web site that allows people to compare phone plans. I use publicly-available information about the various suppliers’ pricing to build a database that is looked up to recommend a specific plan from a specific provider. This would now seem to be a breach of copyright. I work with people who design phone plans, and I can tell you it’s a very creative process — though perhaps not for the right reasons.

My response to that would be – not necessarily. Actually, the cases where people have tried to use copyright to prevent this kind of ‘comparison’ site go way back to the early days of the Internet. In the US, they tend to fail on ‘fair use’. In Australia, we don’t have fair use, but I think there are at least two safety valves that mean this isn’t going to be infringement:

  1. First, you may not end up copying enough to be infringing copyright. Let’s say there’s a whole mobile phone plan. Let’s say you extract a few key items: price of phone, price per minute, connection fees, timing. That’s a whole lot less than the whole plan. Whichever way you look at it, you always have to copy a substantial part of the copyright work to infringe. In the IceTV case, the copyright work was the whole weekly schedule. I think the court’s assessment of whether a substantial part was taken is open to question in IceTV, but the phone case is another case, that would be assessed on its own facts. There’d be serious doubts whether you copy enough;
  2. Second, even if you did copy enough, there’s a fair dealing defence for ‘criticism and review’. If you are specifically reviewing the various phone plans, with a view to making a recommendation on which are the best – I think you’re criticising and reviewing. Sure, you’re not reviewing the literary merits, but that’s not necessary, as a long line of copyright cases establishes.

So don’t start panicking yet.

House of Commons reports that one of the items in the budget was money to be spent establishing an artist resale royalty scheme. This should make organisations like the National Association for the Visual Arts happy (oh look it did), and the Australian Copyright Council, but the idea does have plenty of critics, and a recent report on the newly-introduced UK scheme was hardly enthusiastic. Here’s hoping they can do it in a way that doesn’t just increase bureaucracy without benefit to actual artists.

gurryIP Watch is reporting today that Australian Francis Gurry has been voted the new Director of WIPO. Francis has been at WIPO for some time now, most recently as deputy director general in charge of patents, Internet domain names, and other matters. He previously served as WIPO general counsel. His bio is here. It was close though – a 41/42 margin…

Taking a look through the LawFont log (as one does – it’s kind of like self-Googling – an attempt to make one feel important) I came across a link to LawFont from a website called “the rarest words“. This is their self-description:

What’s this? If you look at just the main pages of all sites in .com/.net/.org zones – you’ll see more than 17 millions words. Some of them got to be telling some interesting stories and that’s what we’re going to find out. Come back later when the system is really working (right now it’s more of a bunch of raw science stuff).

Basically, it lists some of the ‘rarest words’ that have been used on LawFont – as well as the most popular. Now, some of those ‘rarest words’ are typos or proper nouns – but take those away and you have some rather interesting words. Words that make it onto the ‘rarest’ list that we’ve used here on LawFont include:

  • outlandish
  • deterrence and deter (clearly the copyright owners need to do more work here)
  • overstated
  • inconvenient (what? people don’t talk about things being ‘inconvenient’? Or are they misspelling the word???)
  • fascinate (more people should use that word)
  • reprise
  • rumpus (what? no rumpuses online?)
  • adequately (ah, those adverbs)
  • econometric (yeah, that one is obscure :-))
  • repercussions (cool word)
  • disproportionate (a little surprising)
  • scoundrels (now there’s a word we should use more often, although I suspect that’s from Dale’s blog)
  • elucidated; and
  • terminate

Oh, and then there’s the embarrassing ones – like ‘resourced’, ‘lawish’ (we used that???). Very interesting.

Following up from my long post on the case, some more comments and things on IceTV that are interesting:

  1. This thread discussing the decision in the Digital TV Forum
  2. This post on the case, with a reference to a really interesting paper by Kathy Bowrey on digital television and copyright;
  3. The responding press release from IceTV (foreshadowing a special leave application if necessary).

One thing that I mentioned in my previous post was that I had a vague recollection something was already happening on electronic program guides and their provision. I’ve looked into that, and it appears that:

  1. FreeTV Australia (ndustry body which represents all of Australia’s commercial free-to-air television licencees) made two announcements last year. First in July they announced they would be providing the electronic program guide (EPG) to ‘ manufacturers of set top boxes, personal video recorders (PVRs) and other service providers’ – BUT with conditions ‘designed to protect copyright, protect the integrity of the program information and facilitate collection of ratings information’ (which probably means ‘no ad skipping allowed’, but the press release doesn’t specify);
  2. Then in November 2007, they announced that they would be ‘openly broadcasting program listing information by 1 January 2008, creating Australia’s first free electronic program guide (EPG)’. To be honest, I don’t know what the impact of that is.

It’s also worth noting that the Australian Communications and Media Authority has the power under the Broadcasting Services Act, s130K, to register Industry Codes, including (as an example) codes of practice relating to EPGs. ACMA also has the power to request that a code be established by an Industry, and ‘a reserve power to make an industry standard if there are no industry codes or if an industry code is deficient’ (s130C). As far as I know, ACMA has not in any way exercised this power, and while there’s a negotiated ‘deal’ on EPGs, as in the announcements above, I couldn’t see any reference to it being an industry code in any way.

Update: Bill Patry has commented on the case from a US perspective – here.

Today we had the pleasure of a staff seminar up here at the University of Queensland Law School – by David Lindsay, an old colleague of mine from my melbourne days. David these days is at Monash University Law School.

David’s recently published a book with Hart called International Domain Name Law.

Now, I remember back when I first started teaching ‘cyberlaw’ type subjects at Sydney University back in around 2001-2002, domain names was one of those standard things you did. But people seemed to move on, lose interest; stopped talking about domain names much. But today’s talk was something of a revelation to me: David outlined something of the strange, quasi-common-lawish nature of the domain name decisions, with the gradual development of views on issues of interpretation, the areas of controversy, the splits, the absence of clear principles upfront leading to a gradual ‘feeling around’ – all at internet speed due to the number of decisions being issued. He also revealed some of the more outlandish aspects of this rough-and-ready systems: the application of random bits of national law; the lottery that is panellist appointment. And he elucidated how many of the areas of controversy could be fixed with some clear understanding of the objectives of the system.

It was very clear that david’s really done the hard yards in this book: he really has read the decisions – lots and lots and lots of them – and he’s done the heavy intellectual lifting of trying to make sense of it all. I couldn’t be more enthusiastic in recommending it should you ever need to worry about domain name disputes.

And double your money, by doing it via the Club Troppo/John Quiggin appeal. Details here.

As I flagged yesterday, yesterday morning the appeal judgment in the IceTV case was handed down by the Full Federal Court. This truly was an all-stars copyright case: interesting issues, an all-star IP bench (including the CJ himself, plus two senior IP heavies – Justices Lindgren and Sackville) (note too – the same bench that sat on the Desktop Marketing case), no less than 4 senior counsel (all of them IP heavies in their own right) plus juniors.

I’d give you background on the case but I don’t really need to – Peter Black has already done that albeit a while ago now, and so have I. In summary, the case raises the question whether Channel Nine could use its copyright in its television program guides to prevent a rival publishing an electronic program guide compiled from a combination of recording what was shown on TV, ‘prediction’ and updating from published guides. Nine lost the original case but have won on appeal: that means they have regained their rights of complete control over programming guides. From a competition perspective, this raises some interesting questions which Joshua Gans has discussed before. Over the fold, my preliminary thoughts on the copyright ruling. (more…)

Just a quick note: the Full Federal Court judgment in IceTV is now up on AustLII. The case concerns the electronic program guide for television: Channel Nine sued a company which was providing the EPG for people wanting to make fully functional use of digital television recorders. Background on the case here.

At first instance, IceTV won – Bennett J found that there was no copyright infringement. It was a ruling that surprised a lot of people – so perhaps the fact that the appeal has been allowed – that IceTV has lost its case in the Full Federal Court – is less surprising. Although quite possibly pretty inconvenient for the makers of digital video recorders of the TiVo type.

In any event, more comments once I’ve digested what the judgment actually says!