In August of last year, I did a post on a decision by Justice Annabelle Bennett of the Federal Court in Sydney, Australia in a copyright infringement suit brought by the Channel Nine Network in Australia against IceTV for the latter's electronic program guide. Ice's EPG copied schedule information from Nine's weekly guides. Earlier background on the suit can be found here in a post by Kim Weatherall, and here in a post by Peter Black. IceTV was found to have copied information from Channel Nine, but to have engaged in its own research as well, combining information from a number of sources. This activity led the judge to conclude: “It is open at law to a person to ascertain the facts recorded in a compilation on the basis of that independent inquiry. This is what IceTV did…” That made sense to me.
On May 8th, Justice Bennett's decision was reversed on appeal. Here is a link to the appellate opinion. Kim Weatherall has a long post on the opinion here, with a follow-up with other excellent links here. As Professor Weatherall points out regarding the appeal: "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." That said, for American lawyers, the opinion, as with the earlier opinion by in Desktop Marketing Systems Pty Ltd. v. Telstra Corporation, Ltd. [2002] FCAFC 112, involving telephone directories, may prove baffling. Not that baffling American lawyers should be any consideration for Australians: I am merely noting that Australian law on the issues of originality and infringement of factual compilations is radically different than U.S. law, at least post-Feist. (I think pre-Feist too, but there were a few sweat of the brow opinions before Feist).
I leave it to Australian copyright experts -- of whom there is a vast number in that magnificent country -- to debate whether the court of appeals got the IceTV issue right as a matter of Australian law and/or policy. I do note these remarks by Professor Weatherall:
In summary? A judgment that is consistent with the trend of Australian authority, and entirely [’entirely’ is a bit strong for a preliminary view!!!] consistent with the reasoning of the (identical) Full Federal Court in Desktop Marketing. But a judgment which also illustrates how far away, in some respects, Australian copyright law is from copyright law in other countries, including the US (with its concepts of thick and thin copyright), and the UK now that the UK has the Database directive. And a judgment that emphasises that Australian copyright law truly does protect information, and not just expression (the judgment is notable for not even talking about that issue).
My question about both Desktop Marketing and now IceTV is a conceptual one: where protection is based on sweat of the brow, how is there any room for the traditional substantial similarity analysis that the court nevertheless ploughs through, including a discussion of qualitative takings? To be clear about the context of the question: plaintiff did not claim copyright in the form of the weekly guides, meaning, I take it, the selection, coordination, or arrangement in U.S. compilation terms. Rather, the claim was in the sweat of the brow. Justice Bennett below had tried to make a fine distinction about types of labor, phrasing the question as "not whether Ice had taken the skill and labour which had been expended in programming decisions, but whether it had taken [Nine's] skill and labour of creating the work." This framing of the question at least tried to separate out two distinct activities, the first the creation of what Americans would call the creation of the broadcast day -- the actual programming that was broadcast --, and the second being whatever effort went into the creation of the weekly guide from which Ice took information. The court of appeals was having none of this: "it would seem that the originality of [the time and title] information lay not so much in the form in which None presented it, but the skill and labour expended in selecting and arranging the programs." (para 94).
To an American, I see two problems with this aside from the avowed protection of sweat of the brow (see paragraph 92 of the appellate opinion): first, it grants protection to the weekly guides based on what was done in constructing the actual programming rather than in constructing the guides, and, second, it absolutely protects facts. Given this, the opinion could have been quite short: did Ice expend its own sweat of the brow? If not, case over, and let's dispense entirely with the traditional infringement analysis. I say this not to be catty (I leave that to the IPKat, meow!), but rather to note than sweat of the brow is based on unfair competition, not copyright, so why not just decide it that way?
Showing posts with label IceTV. Show all posts
Showing posts with label IceTV. Show all posts
Monday, May 12, 2008
Friday, August 10, 2007
Australian Electronic TV Guide Opinion
A Federal Court in Sydney, Australia has handed down a very interesting opinion in a case testing the scope of compilation copyright and independent creation. Channel Nine sued IceTV, the creator of an electronic program guide, claiming copyright infringement of Nine's Weekly Schedule. Users of IceTV’s service can record up to two channels at once from their DVR, computer, or cell phone, and skip advertisements. The court, per Judge Annabelle Bennett, held that while Channel 9’s owns a copyright in its schedule, it had not been infringed. She added though that “Nine cannot claim copyright in the time and title information for a single day or week as if that information were itself a separate compilation."
IceTV was found to have copied some of the information from Channel Nine, but to have engaged in its own research as well, combining information from a number of sources. This activity led the judge to conclude: “It is open at law to a person to ascertain the facts recorded in a compilation on the basis of that independent inquiry. This is what IceTV did…” She then goes on at length to describe the process by which IceTV created its guide.
Australia had an earlier case that raised some of these issues, Desktop Marketing Systems Pty Ltd v Telstra Corporation [2002] FCAFC 112, in which the Full Federal Court of Australia held that copyright subsisted in the white pages telephone directory, but based on a more liberal approach to originality as requiring that for to works be ‘‘original,” they need only “originate from the author." The U.S. Feist opinion, by contrast held the white pages uncopyrightable, and on constitutional grounds for lack of originality. On the infringement side of the Desktop case, defendant copied almost the whole directory (as was true in Feist but with a different result). This was not the case in IceTV, and makes that opinion more interesting for that reason alone.
Ice itself has commented on the opinion here, which includes a link to the judge’s summary of her findings.
A Federal Court of Sydney Australia has handed down a very interesting opinion in a case testing the scope of compilation copyright and independent creation. Channel Nine sued IceTV, the creator of an electronic program guide, claiming copyright infringement of its own Weekly Schedule. Users of IceTV’s service can record up to two channels at once from their a DVR, computer, or cell phone, record from two channels at once, and skip advertisements. The court, per Judge Annabelle Bennett held that while Channel 9’s owns a copyright in its schedule, but that it had not been infringed. She added though that “Nine cannot claim copyright in the time and title information for a single day or week as if that information were itself a separate compilation.
IceTV was found to have copied some of the information from Channel Nine, but to have engaged in its own research as well, combining information from a number of sources. This activity, led the judge to conclude: “It is open at law to a person to ascertain the facts recorded in a compilation on the basis of that independent inquiry. This is what IceTV did…” She then goes on at length to describe the process by which IceTV created its guide.
Australia had an earlier case that raised some of these issues, Desktop Marketing Systems Pty Ltd v Telstra Corporation [2002] FCAFC 112, in which the Full Federal Court of Australia held that copyright subsisted in the white pages telephone directory, but based on a more liberal approach to originality as requiring that for to works be ‘‘original,” they need only “originate from the author. On the infringement side of the Desktop case, defendant copied almost the whole directory. This was not the case in IceTV, and makes it interesting for that reason alone.
Ice itself has commented on the opinion here, which includes a link to the judge’s summary of her findings.
http://www.icetv.com.au/news/?p=44
In a twist that may raise some eyebrows, one should report the notice that IceTV itself uses:
IceTV's electronic program guide (EPG) is an original work created by IceTV's staff. Some programs are available elsewhere that gather EPG data from various sources such as websites. IceTV does not recommend use of such programs as their use is likely to infringe other parties' copyright. Such programs may also be unreliable, especially if the owners of the data take technical or legal steps to prevent their work being copied. IceTV's EPG is its own, original work and IceTV owns the copyright. You may not copy or distribute it in any way except for the personal use for which you obtain license when subscribing to the service.
In a twist that may raise some eyebrows, one should report the notice that IceTV itself uses:
IceTV's electronic program guide (EPG) is an original work created by IceTV's staff. Some programs are available elsewhere that gather EPG data from various sources such as websites. IceTV does not recommend use of such programs as their use is likely to infringe other parties' copyright. Such programs may also be unreliable, especially if the owners of the data take technical or legal steps to prevent their work being copied. IceTV's EPG is its own, original work and IceTV owns the copyright. You may not copy or distribute it in any way except for the personal use for which you obtain license when subscribing to the service.
IceTV was found to have copied some of the information from Channel Nine, but to have engaged in its own research as well, combining information from a number of sources. This activity led the judge to conclude: “It is open at law to a person to ascertain the facts recorded in a compilation on the basis of that independent inquiry. This is what IceTV did…” She then goes on at length to describe the process by which IceTV created its guide.
Australia had an earlier case that raised some of these issues, Desktop Marketing Systems Pty Ltd v Telstra Corporation [2002] FCAFC 112, in which the Full Federal Court of Australia held that copyright subsisted in the white pages telephone directory, but based on a more liberal approach to originality as requiring that for to works be ‘‘original,” they need only “originate from the author." The U.S. Feist opinion, by contrast held the white pages uncopyrightable, and on constitutional grounds for lack of originality. On the infringement side of the Desktop case, defendant copied almost the whole directory (as was true in Feist but with a different result). This was not the case in IceTV, and makes that opinion more interesting for that reason alone.
Ice itself has commented on the opinion here, which includes a link to the judge’s summary of her findings.
A Federal Court of Sydney Australia has handed down a very interesting opinion in a case testing the scope of compilation copyright and independent creation. Channel Nine sued IceTV, the creator of an electronic program guide, claiming copyright infringement of its own Weekly Schedule. Users of IceTV’s service can record up to two channels at once from their a DVR, computer, or cell phone, record from two channels at once, and skip advertisements. The court, per Judge Annabelle Bennett held that while Channel 9’s owns a copyright in its schedule, but that it had not been infringed. She added though that “Nine cannot claim copyright in the time and title information for a single day or week as if that information were itself a separate compilation.
IceTV was found to have copied some of the information from Channel Nine, but to have engaged in its own research as well, combining information from a number of sources. This activity, led the judge to conclude: “It is open at law to a person to ascertain the facts recorded in a compilation on the basis of that independent inquiry. This is what IceTV did…” She then goes on at length to describe the process by which IceTV created its guide.
Australia had an earlier case that raised some of these issues, Desktop Marketing Systems Pty Ltd v Telstra Corporation [2002] FCAFC 112, in which the Full Federal Court of Australia held that copyright subsisted in the white pages telephone directory, but based on a more liberal approach to originality as requiring that for to works be ‘‘original,” they need only “originate from the author. On the infringement side of the Desktop case, defendant copied almost the whole directory. This was not the case in IceTV, and makes it interesting for that reason alone.
Ice itself has commented on the opinion here, which includes a link to the judge’s summary of her findings.
http://www.icetv.com.au/news/?p=44
In a twist that may raise some eyebrows, one should report the notice that IceTV itself uses:
IceTV's electronic program guide (EPG) is an original work created by IceTV's staff. Some programs are available elsewhere that gather EPG data from various sources such as websites. IceTV does not recommend use of such programs as their use is likely to infringe other parties' copyright. Such programs may also be unreliable, especially if the owners of the data take technical or legal steps to prevent their work being copied. IceTV's EPG is its own, original work and IceTV owns the copyright. You may not copy or distribute it in any way except for the personal use for which you obtain license when subscribing to the service.
In a twist that may raise some eyebrows, one should report the notice that IceTV itself uses:
IceTV's electronic program guide (EPG) is an original work created by IceTV's staff. Some programs are available elsewhere that gather EPG data from various sources such as websites. IceTV does not recommend use of such programs as their use is likely to infringe other parties' copyright. Such programs may also be unreliable, especially if the owners of the data take technical or legal steps to prevent their work being copied. IceTV's EPG is its own, original work and IceTV owns the copyright. You may not copy or distribute it in any way except for the personal use for which you obtain license when subscribing to the service.
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