But I do note that the UK has a vibrant free-to-air digital sector with a mandated EPG (I’m not sure on what basis the stick is wielded, but I believe it IS a stick, and not a carrot)

A happy consumer of at least one community-led EPG effort, with a Topfield PVR, who now faces loss of functionality if this has a chilling effect on the data collection exercises done in the community/not-for-profit spaces..

I’ve posted a less detailed commentary about teh matter on my blog http://www.vogelross.com.au/vrblog

Seems to me that there are some inconsistencies between the judgment and Desktop. A bit involved but I’m writing it up.

The other clanger I saw in the judgment (and I agree with your comments on the other points) is the circular dicussion of “copying” and “causal connection”.

I’m interested to find out more about your mention of “David Lindsay talked about in his talk at the Copyright Symposium last year.”

If you can direct me to a copy of that I’d be most grateful.

Peter Vogel peter.vogel at vogelross.com.au

Question: if I was watching TV, and an ad comes up, saying “Don’t miss the brand new exciting episode of X at 9:30pm on Y !”, then I go and email a friend about the time and show title, is that breaching the copyright? Or it would fall outside of ’substantial’ ?

Taking it further… if 100 people email me saying “hey you should watch this show W at 7pm on Z, it looks interesting” and I collate that into a table and publish it, is that breaching copyright?

Or what about public transport time tables – are they copyrighted to the relevant government authority? (State rail or city council bus etc they would have gone through the same creative process that Nine would had to write up their schedule) If I own a restaurant and published the bus and train time tables on my website telling potential customers the easiest way to get to my venue (like “catch the Green Line train at 10min past every hour and get off at station Q”) is that copyright infringement?

Providing the programming information in an electronically useful form may well be ‘transformative’ in some sense or another. But that’s actually not particularly relevant under Australian law, unless you can bring yourself within one of our specific copyright exceptions. ‘transformative use’ is relevant in the US ‘fair use’ analysis. But in Australia we have ‘fair dealing’ – a specific set of exceptions that allow ‘fair’ copying for specified purposes: things like news reporting, criticism, parody, research and study. There’s no exception that covers this kind of activity.

It may of course be socially useful (although, maybe people will do more exercise without an effective DVR…). but then that just raises the question: should the government intervene to require access? I can’t help but wonder sometimes whether the government should not intervene to require general access to EPGs. If people could make real and effective use of EPGs, maybe they would be more enthusiastic about things like the shift to digital television.

But the fact is that the government is, and will remain, very reluctant to take that kind of step. Why? Because it would annoy the free to air channels, and no government wants to do that. The government is far more likely to cajole them to do some kind of industry deal, but that kind of industry deal is really quite likely to place some limits on what people/device manufacturers can do with the EPG (eg, conditions re ad-skipping).

Maybe what will in fact happen (maybe this is already happening?) is that DVRs will be produced, and some of them will be able to be modified to add features people want. DVR provider won’t do it themselves, avoiding breaching conditions. But the ones that people can hack – well, they will be more popular/in demand. Kind of like the way that region-free DVD players have entered the Australian market by default. Just a thought.

OK, let’s think this through. We’ll assume, for the purposes of this analysis, that there is no implied license to copy the online television programming data for personal use (a fair assumption, given that even if there were an implied license, it could probably be ‘revoked’ fairly easily by putting a notice on the info). Assume too that the the software is copying enough to be ’substantial’ (likely, the whole day’s or week’s programming, right?)

OK, so the software is designed to make a copy of the programming data for the individual’s personal use. The personal use copy is an infringement on the assumptions I’ve made; just because it is for private use does not mean it’s ok (we’ve got some limited private use copying exceptions, but not ones that cover this).

So then the question is whether the vendor is authorising the infringement. Here in Oz that’s a question that depends on whether the Australian court decides that you are ’sanctioning, countenancing or approving’ the infringement. And that will depend on things like your power to prevent the infringements (pretty high here; would be simple not to include the software); the nature of the relationship between the vendor and the customer (mostly in terms of your rights to control their actions. Vendors don’t have much right or ability to control what people do with the machine once bought, but again, we have that problem of ‘you could provide the PVR without the software); and whether you took any reasonable steps to prevent the infringement.

My gut reaction is that there would have to be a chance that this would be authorisation of infringement (and hence liability) here. it’s usually been the case that vendors who sell things without any power of ongoing control over how it is used (things like blank tapes) isn’t considered to have authorised infringement. But Australian courts haven’t had to consider a case where the product only had infringing uses (can’t see any other use for the software).

and I see this as a socially useful thing! -I THINK that a strict-law focus on the copyright is probably inevitable, but the lack of consideration of the ’social goodput’ is probably where non-lawyers like me have a problem: the information SHOULD be in the public domain, and the free-to-air’s are (and should be) subject to social regulation in return for advertising revenue: I do not see their programme guides as neccessrily being part of their IPR which should lie outside of the social constraint on their moneymaking which allowed them the grace and favour of the wavebands: ie, either they pony up and broadcast a 10 day epg, or people will continue to make their own and the regulator(s) should be thinking about this.

nice article btw.

What impact would this have on a vendor who provided software that automated the process of copying this information for private, individual use? (ie. software distributed with a PVR system, used to screenscrape programming data from television websites)

Just seems like the old “provision of device to break the law” debate to me, but curious about the implications of this copyright decision on it.

Thanks for keeping the layfolk informed. ;-)

(though it appears to be down right now)