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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.

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…

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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.

Judge Posner posted a very insightful entry on the Becker-Posner blog concerning family control of voting stock in media companies, a topical subject given Rupert Murdoch’s overtures to the Bancroft family regarding the Wall Street Journal.

Of interest is this quote, which shows how well he “gets” the internet: (more…)

The Fairfax press reported a couple of weeks ago that TiVo, the “time-shifting digital video recorder” is coming to Australia in early 2008 courtesy of a deal struck with Channel 7. On the surface, this seems like a good thing for everyone - that is, everyone who cares about TV- competition between service providers, choice, flexibility and further integration with on-line media services and sources. These digital TV services are evolutionary and it’s good that they seek to move their audiences beyond the one-way flatscreen TV experience. Still, I’ll be interested to see how it pans out, given that the wrangle over the electronic programme guide (EPG) has been foreshadowed, including the “one EPG to rule them all” argument being raised yet again…now the EPG debate has been around for a while, both here and abroad, in respect of access to the subscription tv EPG…hmmm, interesting times ahead…

Crikey today is reporting that:

In a move thought to be unprecedented in global sport, photographers from international news agencies like Reuters, AFP, AP and Getty Images have been locked out of AFL games for season 2007. Their work has been replaced by an agency created by the AFL to manage the League’s press photography. Geoff Slattery Publishing, publishers of the AFL Record, has the contract to manage AFL photography. But the scheme has raised serious questions about press freedom and the right of news organisations to report on public events.

So this is bad, I’d agree, for all kinds of reasons that Crikey explores. But all I can think is - what a great opportunity for amateur photographers to take and sell photos to the press! Citizen journalists unite.

UPDATE:Crikey have another story about the AFL move today - which points out attempts by others - in particular, FIFA - to do something similar. Apparently, so far attempts to do this kind of thing have led only to tears (and rapid backdowns). I await the next development…

And another thing, about the November government draft of a new law for internet censorship (see my previous comments here and Pete Black’s comments here).

One thing that is fundamentally wrong with the government approach is the ‘cover everything, create specific exemptions’ approach. The government proceeds by creating a default position that everyone doing anything online (even vaguely related to commercial life) is covered, and then creates a long list of exemptions so that certain kinds of sites are free from regulation.

Three serious problems with this approach:

1. The obvious problem: new kinds of sites are automatically censored. Since we don’t know what might happen online next, why make the default regulation? Why not single out the specific things you want to cover?
2. The ‘bob each way’ approach: for most exempt categories, the definition states that the site must fit the definition AND ‘comply with other requirements in the regulations’. This would enable the government at any time to impose additional requirements on, say, user-generated sites or search engines - by regulations, which can only be DISALLOWED, not amended, by Parliament. Ick.
3. Lawyers’ paradise. I foresee many arguments by people saying they fit within categories. That’s what always happens when you have a specific list. Again, ick.

Oh, and here’s a question. do you think massive multiplayer online games are covered by this regime?

Ah, censorship. What is it about censorship that brings out the silliness in legislators? Why is it that the idea of censoring the Internet gets people so excited they forget to work out whether the laws are at all sensible?

Crikey has today leaked a November draft proposed Australian Internet censorship law: the Communications Legislation Amendment (Content Services) Bill 2006. I’ve had a look. It’s unbelievable.

Crikey report that the bill has been redrafted. It had better be. Better still would be to forget it altogether. Because this draft doesn’t pass the laugh test. Really. It is inconsistent with fundamental values like freedom of speech and freedom of information; it is broad, draconian, and wouldn’t work, it is completely out of step with the way the Internet works (it seems to require pre-emptive monitoring of content by hosts before it even goes online). I think I’m back in the year 2000 - the last time this same government tried to write an Internet censorship law. More on why this draft is so bad over the fold. [update: Pete Black has also commented, along very similar lines to me, here]
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Warner Bros. has joined a number of other television broadcasters in providing some of its programming for sale on Apple’s iTunes. A number of networks, including Fox (owned by News Corp.), ABC (Walt Disney Co.), NBC (Universal), CBS, and MTV (Viacom Inc.), along with Warner Bros., together offer more than 150 television shows for US$1.99 per episode. The shows may be viewed on a computer or a video iPod. And what’s really interesting — it’s possible to subscribe to a current season of a television show (and not just repeats). (more…)

Media regulation in Australia will be dramatically changed over the next year. Senator Helen Coonan announced the adoption of a new media framework on 13 July, including a substantial strengthening of media regulator ACMA’s powers and the relaxation of cross-media ownership restrictions. (more…)