The Australian government’s Convergence Review Committee has released a Framing Paper and invited public submissions on what principles should guide the review over the next year.

The principles currently proposed span across broadcasting, telecommunications, and radiocommunication issues (although the bias is towards broadcasting content issues):

1. Australians should have access to a diversity of voices, views and information.
2. The communications and media market should be innovative and competitive, while still ensuring outcomes in the interest of the Australian public.
3. Australians should have access to Australian content that reflects and contributes to the development of national and cultural identity.
4. Australians should have access to news and information of relevance to their local community.
5. Communications and media services available to Australians should reflect community standards and the views and expectations of the Australian public.
6. Australians should have access to the broadest range of content across platforms and services as possible.
7. Service providers should provide the maximum transparency for consumers in how their service is delivered.
8. The government should seek to maximise the overall public benefit derived from the use of spectrum assigned for the delivery of media content and communications services.


The final terms of reference for the upcoming Convergence Review to be conducted by the Australian government have been announced, following on the draft terms of reference provided for public comment in December.

At the Australian Broadcasting Summit this morning, Senator Stephen Conroy, the Minister for Broadband, Communications and the Ditital Economy, noted that the final terms of reference have been released. The focus of this review appears to be how best to regulate content that are accessible across a number of delivery platforms (television, computers, and mobile/telecommunications devices), rather than via a single means as in the past.

The terms of reference, which are now posted on the Department’s website, include:

–ensuring that the policy framework for media content and communications services is appropriate, and advising on ways of achieving it and on the potential impact of reform options on industry, consumers, and the community;
–looking at all relevant legislation and regulations implicated by the terms of reference (including, it appears, those outside of the Minister’s portfolio);
–considering both regulatory and non-regulatory measures to achieve the new framework;
–taking into account a number of issues when developing the new framework, including ensuring an innovative and effective media industry, the continued production and distribution of Australian content, developing appropriate ways to treat content that crosses international borders, and considering the appropriate ways in which radiocommunications spectrum is allocated.

Senator Conroy also remarked at the conference that the review committee will include Malcolm Long, who until recently was a member of the Australian Communications & Media Authority. Now an independent consultant, Long was also past Director of the Australian Film, Television and Radio School, and Managing Director of national broadcaster SBS, among other senior roles in the Australian media industry.

Update: The Department has announced that Glen Boreham, formerly Managing Director of IBM Australia, will be chairing the review committee. The third and final member of the committee will be announced shortly.

The draft Terms of Reference for the Government’s review of the laws relating to the converged media and communications industry have been published.

Part of a FAQ on the website of the Department for Broadband, Communications and the Digital Economy, which is conducting the review, notes that:

* ‘Convergence’ describes the trend whereby devices (such as televisions, mobile phones and computers) and platforms (such as broadcast, telecommunications and broadband) that once had distinct functions may now support many different services and applications.
* You can now watch a TV show on your television, your computer or your phone. You can also make a phone call from your laptop or your email account. These examples illustrate the trend of convergence—that is, when the service experienced by the consumer is similar regardless of the network or device that delivers it.
* Convergence is driven by a range of evolving and new technologies including internet protocol networks, high-speed broadband and smart devices and phones.

The Department also notes that the incentive for the review, which will be conducted during 2011, is to ensure that Australia’s existing regulatory frameworks for broadcasting, telecommunications, and radiocommunications continue to operate appropriately in a media and communications sector that is becoming increasingly converged. Communications Minister Senator Conroy remarked in the media release announcing the review that the introduction of the National Broadband Network will accelerate the process of convergence. He also noted that the review will “look at all content delivery platforms including broadcast, mobile and fixed telecommunications and the internet”.

This review will consider possible changes to the three main acts governing the sector: the Broadcasting Services Act 1992, the Radiocommunications Act 1992, and the Telecommunications Act 1997.

The Department is accepting submissions on the draft Terms of Reference until Friday 28 January 2011.

It seems that digital television broadcasts in the United States are increasingly being received not via subscription television, but over the airwaves with the help of an old-style technology: rabbit ears.

Viewers who are either unwilling or unable to pay for increasingly expensive cable or satellite television are turning to free-to-air television, with the help of the new generation of rabbit-ear type antennas, which are designed to receive digital broadcasts.

The evidence of this move is not simply andectodal, but is supported by cable television companies and analysts, who have noted drops in pay television subscriptions. As further evidence, at least one cable provider (Time Warner Cable) started offering in November a cut-price package with a smaller range of channels.

Interestingly, it seems that consumers choosing free-to-air over subscription television services are supplementing their viewing with specific programs from cable television operators downloaded over the Internet, including from iTunes.

In a market saturated by subscription television options, is the move back to free-to-air a sign that cable television is simply too expensive these days, or that free-to-air plus selectively purchasing your favorite cable shows on iTunes is both more economical and more enjoyable? Probably both–as well as being a function of the nature of digital television broadcasting itself. Whereas analog television signals become progressively unclear as you move further away from the source of the signal (leading to constant adjustment of those rabbit ears at the margins), digital television broadcasts are typically either received fully or not at all. So remedying poor reception is not such a strong reason to go to subscription television any more.

The article does not discuss the use of external antennas (masthead or otherwise) at all. I wonder if viewers able to do so are also investing in antennas on their roofs?

I’ve discovered podcasts. Yes, I know it’s a little late in the piece, but really, it’s been a pretty recent thing: since I (a) got an iPhone and (b) started walking to work every day. At half an hour each day, I get a lot of listening done and music doesn’t quite do it for me. And lo and behold, there are all these interesting things to listen to online. I want to promote one specific thing, which is actually not a podcast, but a Webinar:

Managing IP magazine’s Asia editor Peter Ollier will be conducting a live online interview with IP Australia director general Philip Noonan on Friday March 6 at 4pm Australian Eastern Standard Time (3pm for us Brisbanites).

The one-hour interview will cover topics such as the recommendations in Terry Cutler’s venturousaustralia report, innovative step and inventive step in Australia’s patent law, the controversial Anti Counterfeiting Trade Agreement and the impact of the credit crunch on patent and trade mark applications in Australia. Registration for this event is free. To register please go to Listeners will also be able to submit questions during the interview. Click here to go to the registration page.

Hey, how often do you get to hear about IP from the ‘horse’s mouth’, the dude in charge, so to speak? Think up your tricky questions about ACTA and the Innovation Review now! The other thing I wanted to mention was podcasts. There are a lot of cool podcasts out there. Apart from the wonderful material from our ABC, it’s worth highlighting:

  1. The IP Colloquium (run by Doug Lichtman, UCLA);
  2. The Software Freedom Law Center podcasts (all things open source)
  3. The amazing collection of stuff at iTunes U – lots of free lectures on all kinds of interesting things: from Berkeley, Stanford, LSE and other exciting places;
  4. Very cool.
  5. Digital Planet at the BBC
  6. Search Engine on CBC (Canadian Radio)
  7. Academic Earth (great lectures on all kinds of topics)

I’m sure there are others. Feel free to add them in the comments. Always looking for good new listening!

I mentioned yesterday the current debate over internet censorship in Australia. I should, at the same time, have mentioned a free event that UNSW’s Baker & McKenzie Cyberspace Law and Policy Centre is having next Thursday. Full webpage here with speakers/program/etc. Here’s the short version:

The UNSW Cyberspace Law and Policy Centre is hosting a forum to explore aspects of the Australian Government’s current Internet filtering and censorship proposals. The aim is to get beyond some of the more heated claims and counter-claims circulating at present and explore the underlying issues and constraints, hopefully giving room for various perspectives and arguments to be considered on their merits. …
Date/Time: Thursday 27 November 2008, 9:30 am for 10:00 to 2:30 pm
Location: Theatre G02, ground floor, Law Building F8, UNSW Kensington Campus, Sydney NSW
Cost: Free, but donations to help cover the cost will be accepted at the door.

You heard it first … everywhere else. I know. House of Commons has reported it, as have assiduous commenters on this blog.

But for those who didn’t know: IceTV has been granted special leave. More commentary from House of Commons here. My previous commentary here and here; Bill Patry here. For my money, read David Lindsay’s slides from a presentation he gave on the case for the Copyright Society (click on ‘Download Powerpoints’ – immediately below the heading on that page): no one has done the work like he has. Oh, and don’t forget Peter Vogel – one of the men at the centre of the storm.

Fun, fun, fun.

Update: the High Court transcript from the special leave hearing is available here. It makes for some very interesting reading.

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.

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!

As Malik reports, we’ve having the “we own all rights to all images of sport for all time” debate again.

This time it’s cricket. Cricket Australia has been in disputes with all kinds of media over its accreditation rules (the rules that you have to follow if you want to be on the ground as a journalist, you know, to take photos and stuff).

As the Brisneyland Courier Mail reported the other day:

CA insists it holds the intellectual property rights to agency photographs taken at its venues, and that those photos cannot be re-sold without its permission. …
Cricket Australia said it was acting to protect the media rights that form its core revenue in a changing media landscape.
“Where cricket generates commercial value, we believe that some of it should be available for investment in the future of cricket,” CA spokesman Peter Young said.”

The SMH reports today that the accreditation stand-off between CA and News Ltd was resolved, but that international wire services Reuters, AP and AFP were still locked out of the Gabba after refusing to pay CA for images from the game.

Let’s think about this for a minute. “Where cricket generates commercial value, we believe that some of it should be available for investment in the future of cricket”. Hmmm. I quite like that reasoning. I guess that means also that where some journalist takes a photo with me in it and publishes it in a newspaper, that a picture of me is generating commercial value, and some of that value should be available for reinvestment in my appearance (then I could hire that personal trainer I’ve always wanted). Hey, and when I speak to journalists to explain stuff, I should get money for that to reinvest in finding out more stuff about IP law. yeah. Great reasoning.

Come on people. If we all sought to be paid for every little iota of commercial value that could be extracted out of everything, the world would grind to a halt.

Obviously, this is a dispute over media rights in sport, and obviously, that’s much bigger business than photos of me will ever be. And we ARE talking about a dispute between one big body (Cricket Australia) and several others (big international media companies). It’s a little silly to feel particularly sorry, in negotiations, for either side.

But sometimes I wish people would really think through the logic of their positions.

I have a chapter in a new book. The book is called TV Futures: Digital Television Policy in Australia. Further information, contents and the first chapter are available at the CMCL-Centre for Media and Communications Law, University of Melbourne. You can order the book here. You can also find an abstract of the chapter here. TVFuturesCover

The commercial FTA networks, through Free TV, are pushing for a change to the Commercial Television Code of Practice in advance of the imminent Federal election. The changes, which are the subject of public consultation, would allow the commercial FTAs to sell an additional minute of political advertising…


The much anticipated judgment in the C7 matter has been handed down today…it’s a wopping 1230 pages/7MB. Get it here. In a very small nutshell, Channel 7 did not prove its pleaded case and was thus unsuccessful. The issue of costs is still to be worked out. His Honour Justice Sackville estimates costs in excess of $200million. The obiter on ‘mega-litigation’ will be especially useful to the readers of this blog who teach litigation and legal professional ethics.

Can’t happen quick enough in my view.

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