the grass is greener on the internet

IceTV has IP
April 22, 2009, 5:58 pm
Filed under: 1 | Tags: , , , ,

From a law student’s perspective, many bad things can happen during the course of a subject. You can realise, for example, that you have 2000 pages to read before your exam next week. This is slightly unpleasant. You might also realise that you based an entire essay of legal advice on an argument made in a minority judgment (which not only probably makes it wrong but the complete opposite of the law).

But the worst thing which can occur, which is completely out of your control, is that some arm of the law (be it the executive, the legislature or the judiciary, though it’s not like they’re all separate anyway) will do something which changes the law as we know it.

So thanks, IceTV, for changing Australian intellectual property law by watching TV.

That’s right…one of the deciding factors in this case was that the staff at IceTV watched TV to determine a schedule of programmes…instead of just looking in the TV guide like everyone else.

Sounds silly, but that’s what just gave them a victory in a copyright case brought by Channel Nine.

Nine, technically speaking, has copyright over their TV schedules. After all, it takes a lot of effort to create a schedule, including program summaries, titles and times. They license the right out to publications so that you or I can figure out the night’s viewing.

If IceTV had copied a substantial part of the schedule (as happened in a case Telstra brought against Desktop Marketing Systems in 2002) Nine would be well in their rights to sue. But the High Court has held that IceTV used independent methods to come up with the schedules used in their online television recording service, and hence did not breach Nine’s copyright.

So apart from annoying law students around the nation, what are the practical implications?

  1. Legally, this opens doors. Other services will have a stronger case to be able to reproduce compilations by putting in effort of their own to gain them – though the battle will still be tough, as Freeview speculates for its services. And it won’t change anything for Desktop Marketing, who reproduced the Telstra phonebook on CD, but creates a middle ground where you can go to extreme lengths to figure out copyrighted material and produce it saying you did the work to get it yourself. Tough balance.
  2. Being right comes at a price. Legal costs are not pretty; Nine will be shelling out a lot especially as they’re likely to pay IceTV’s as well. Not good for a network already struggling. For Ice it can’t have come cheap anyway, and if they had lost they would lose a good chunk of their business model as well as the legal debts. But the bigger cost is time. Three years is almost a long-term plan, and the kind of competitive edge both must have sacrificed over that time is almost ridiculous. There’s rumours that this was a test case…Nine really drew the short straw.
  3. We could see a revolution in television. IceTv allows users to record TV programs by scheduling on an online platform. They also have the choice to view programs without ads – epic fail for advertisers and the networks. The death of the TV spot has been heralded for quite a while, but without it can we still have free-to-air television? If there’s no financial incentive for producers they’ll have to start charging viewers, which also has repercussions for the viral nature of entertainment popularity.

These are interesting times. The case is going to affect both the legal and media industries.

At least that’s over. And my plea to the High Court: please either let us know what your stance is on Cadbury against Darrell Lea, or take your time. A lot of time.

For your reference…

For Aussies wanting to get a better picture of the law, look at the Copyright Act, as well as Telstra Corporation v Desktop Marketing Systems Pty Ltd (2002) 119 FCR 491 (summary by Tanya Aplin) and the IceTV’s previous published judgment which was just successfully appealed (Nine Network Australia Pty Ltd v IceTV Pty Ltd (2008) 168 FCR 14).


2 Comments so far
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I’ve been keeping a blog of this case as it unfolded (and before) here:

Comment by Peter Vogel

[…] 12:04 pm Filed under: 1 | Tags: advertising, DVR, DVR research institute, DVRs, IceTV Reflecting on the recent IceTV decision, I put out the question: what does this mean for the ad […]

Pingback by Advertisers are clueless about DVR implications, study says « how good you want to be

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