Wednesday, 22 April 2009
more analysis later.
updated: judgment now available on AustLII.
Further update: commentary will have to wait until after my classes today. But please consider this an open thread for any discussion!
Further Further Update: Warwick Rothnie has some very interesting thoughts on the case here. He’s certainly right about one thing. There’s a heckuva lot of food for thought in these judgments.
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11 Responses to “IceTV – appeal allowed – open thread!”
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April 22nd, 2009 at 12:37 pm
Sigh. From a quick reading by a non-IP lawyer: a standard High Court fizz. Decided on narrow grounds that hint at bigger things, but the bigger things are left for another day. Two plurality judgments that are different enough to leave the law unclear even on the narrow point. No surprise that they are so familiar with the difference between intellectual labour and the expression of that labour…
April 22nd, 2009 at 4:22 pm
I’m shouting everyone beers down the pub… High Court judges are to be commended as common sense prevails =)
April 22nd, 2009 at 5:12 pm
I hope iiNet borrow IceTV’s legal team!
April 22nd, 2009 at 5:29 pm
Jeremy: I disagree. The court made the point that it wasn’t necessary to determine whether IceTV had an ‘intent to steal’ in making the decision, nor was it necessary to consider what Nine called it (a database? a schedule? a listing?) – throwing out two major lines of appeal. It made the very valid point that the public’s right to facts must be protected and copyright should not infringe on that right. It pointed to Telstra vs Desktop Systems as the wrong decision (although that’s just my reading). It shredded Nine’s cases in defence of the idea that it didn’t matter where the “creativity” was applied in judging whether the compilation was a “creative” work.
And it’s a very high profile case. Lawyers will know about it and will refer to it. This means there’s going to be a change in the weather for copyright lawyers, especially around how much “sweat of the brow” is relevant in compilation cases.
Really, the High Court can’t just go out and say “you know, all those cases are invalid too”, which I think may be what you are wanting. It has to confine itself to the case before it. But this one is definitely not narrow, to my reading.
April 22nd, 2009 at 8:46 pm
What are Gummow, Hayne and Heydon going on about? Why is the animus furandi inquiry relevant if they’ve already said earlier that the reproduction was not of a substantial part of the copyrighted work?
And yet again they’ve chickened out dealing squarely with the issues raised in Desktop Marketing.
I am beyond disappointed :(
April 23rd, 2009 at 12:47 am
Just finished French, Crennan and Kiefel’s JJ. Haven’t started on Gummow, Hayne and Heydon. Para 42 is the kicker – It’s the reverse of the Federal Court’s finding – The bare time and title information didn’t meet the originality bar, and thus Ice’s copying of it didn’t constitute copying a substantial part of the work.
Ugh, I’m writing terribly but that’s the gist of it. I’ll have a read of Gummow, Hayne and ‘Orrible ‘Eydon to see what the consensus is
April 23rd, 2009 at 9:46 am
LG I agree with Jeremy at post #1. There doesn’t seem to be a clear consensus. But that could be because Gummow, Hayne and Heydon are incomprehensible. “Closely reasonsed” was Warwick Rathnie’s euphemism, but those 3 leave obfuscated pearl programmers in the dust in terms of incomprehensibility.
April 23rd, 2009 at 10:42 am
Consider the following statements:
– para [54] “The level of skill and labour required to express the time and title information was minimal. … the particular form of expression of the time and title information is essentially dictated by the nature of that information.”
– para [56] “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…” (emphasis mine).
– para [170] “… baldly stated matters of fact or intention are inseparable from and co-extensive with their expression.”
Would it be fair to say that as a result of this case, that IceTV no longer have to predict it over? Does this judgement allow the staff at IceTV to copy wholesale the time and title information from the Aggregated Guides (and continue to create their own synopses)?
If so, one might hope that the cost of providing such subscription EPG services would decrease, considering the reduced labour requirements in having to check the Aggregated Guides on a regular basis. (i.e. why check against the aggregated guides to update the IceGuide, when you can just copy the whole thing?)
This seems to me to be a good result for the non-Freeview PVR market, and may open up the competition for other EPG providers to compete with IceTV.
April 23rd, 2009 at 1:46 pm
I just read this: (para 131)
“The first is to emphasise the dangers when applying the Act of adopting the RHETORIC of “appropriation” of “skill and labour”. A finding that one party has “appropriated” skill and labour, of itself, is not determinative of the issue of infringement of a copyright work.” The Act does not provide for any general doctrine of “misappropriation” and does not afford protection to skill and labour alone.” (emphasis mine)
It’s interesting they commented on the rhetoric of (mis)appropriation. It reminds me of those “you wouldn’t steal a car..” MPAA ads on DVDs and at cinemas. It seems the judiciary (in this case) looks down on theft language with respect to copyright infringment.
May 7th, 2009 at 10:24 am
I think people overlook the extent to which HC judgements reflect the way the case was run before them. Nine’s case on what was their copyright work totally changed between day 1 and day 2 of the appeal, leaving the bench somewhat bewildered.
The case had been run from the beginning on the basis that the work in which copyright was allegedly infringed was the Nine Weekly schedule – a work which was compiled from Nine’s database for the purposes of sending to aggregators who publish public TV guides. It would have been absurd for IceTV to deny that Nine had copyright in that work. What IceTV denied was ever reproducing a substantial part of that work.
It was really a simple case on the facts which Nine sought to spin into a case of great complexity. Justice Bennett got it right at first instance. The appeal bench comprised the same three judges that decided Desktop Marketing. On one view they forgot that the two cases were totally different. In Desktop copying was admitted and copyright was denied. In IceTV, copyright was admitted but copying was denied. So the first was a case on the law and the second was a case on the facts. That’s how it should have stayed, and that’s what the High Court had to fix after the Full Federal Court got that basic proposition horribly wrong.
The case does not stand for the proposition that anyone can now take Nine’s programme schedule and copy it holus bolus. It stands for the proposition that IceTV’s conduct in updating its independently developed guide for late changes and schedule changes did not reproduce a substantial part of Nine’s copyright work.
Two other points are worth making: first, IceTV does more than ‘predict over’ based on watching what is broadcast and assuming that the same shows will be on the following week. It tracks newspaper and television promotions, including on air promotions, it tracks newspaper articles about what shows stations have bought, it monitors websites of television show producers and fan sites of movies and shows. It collates all of that information in building its own database of episode sequences etc. All of that effort to avoid copyright infringement had an impact on Justice Bennett and on the High Court, even though it doesn’t come out in the judgements.
Secondly, most people assume that Nine took action because devices that use IceTV’s EPG can skip ads saving the viewer 12 minutes for every hour of time-shifted programming that they watch. What is overlooked is that the ratings don’t measure, and the advertisers don’t pay for, people who weren’t there to watch a show when it was broadcast. Therefore skipping of ads by those who watch a show time-shifted can have no financial impact whatever on Nine or its peers. Even if the world moves increasingly toward time shifting, that will pro rata reduce the total live audience equally across all broadcasters, so there will be no reason to reduce their advertising rates as long as conventional advertising remains a part of advertisers’’ mix.
[Disclosure: I am a major investor in IceTV and gave the original advice as to how IceTV could create its own EPG whilst avoiding copyright infringement. I nevertheless hope that my comments are still seen as objective!]
May 23rd, 2009 at 5:24 pm
Hi Philip,
Thanks for pitching in. It’s great to have an “insider’s” viewpoint on this matter. Also, thanks for the second point about time-shifting and ad revenue. I never thought about it that way before.
About your other point though, I’m still of the opinion that “holus bolus” reproduction of Nine’s guide information wouldn’t be infringement. A few comments in the judgement lead me to that conclusion:
1. Nine’s claim that copyright subsisted in the time and title information only, as a component of the weekly schedule, was rejected. The copyright, and claims of substantiality, must be considered in light of the whole work, being the entire schedule. [27], [36], [41], [122], [157], [169].
2. In assessing substantiality, quality rather than quantity should be considered. [155]
3. In assessing the substantiality of the part reproduced, you need to look at the originality of the reproduced part. [32], [52]
4. The amount of skill and labour expended MAY be indicative of the originality of the work. However, focussing on the amount of skill and labour, and any subsequent analysis of whether that skill and labour was “appropriated” may distract from the analysis of originality. [52], [130-132]
5. The reproduced part was the time and title information.
6. Time and title information did not require much skill and labour, as the skill and labour of the programming decisions cannot be said to be directed to the EXPRESSION of those decisions. [54]
7. The expression of the time and title information is essentially dictated by the nature of the information itself. [42], [54], [170]
8. Since there are only minimal ways in which time and title information can be expressed, that expression “lacks the requisite originality for the part to constitute a substantial part.”
In this analysis, regardless of whatever IceTV did on its own behalf to avoid infringement, the time and title information from Nine is not an original enough part of the Weekly Schedule (or the Nine Database) to be a substantial part. That applies to all the time and title information, not just the parts taken by IceTV.
Not only does this potentially reduce the scope of Nine’s copyright, but I would imagine that this is also detrimental to any claim by IceTV of copyright over its work should a third party copy an IceGuide. Despite the considerable skill and labour in producing the IceGuide, it may be that because time and title information distributed by IceTV is also “prosaic”[43] it lacks the requisite originality to protect itself from infringement for the same reasons why Nine can’t protect its time and title information.
Other things I found interesting about the case:
[31]: ‘It is not helpful to refer to “the rough practical test that what is worth copying is prima facie worth protecting.”’
The judgement seemed to indicate a little frustration or concern at IceTV’s concession of the subsistence of copyright in the weekly schedules. [95].
The judgements emphasised the fact/expression, information/expression, idea/expression dichotomy.[28], [46], [102], [160]
[170]: “in assessing the quality of the time and title information, as components of the Weekly Schedule, baldly stated matters of fact or intention are inseparable from and co-extensive with their expression.”
[36]: “the time and title information is information about Nine’s intended future conduct”
In my opinion, the judges just stopped short of saying that since the time and title information is just facts of intended conduct, then copyright won’t subsist in that information, or any expression of that information. Since subsistence of copyright was conceded by IceTV, this restricted the judgements.
I would speculate that in another case, where subsistence is not conceded, we would have seen a judgement that would wind back (even more than here) the scope of copyright in compilations of facts and information.
I also reading an interesting transcript here: http://www.abc.net.au/rn/lawreport/stories/2009/2560086.htm