Hot TV Guides, anyone?

Last week Australia’s Highest Court delivered a rare unanimous (6-0) decision in a long running legal battle between IceTV and Australian broadcaster Channel 9.  The decision permits IceTV to continue publishing electronic TV program guides incorporating Channel 9’s programming information.  Channel 9 had previously been successful in arguing that IceTV had infringed copyright by taking time, date and title information from its official program guide, notwithstanding that the information was merely factual.

It’s now clear that the Australian Courts have cooled on following a UK style “sweat of the brow” approach to identifying originality.  Notwithstanding that there was some effort involved in producing Channel 9’s guide, the elements copied by IceTV were not sufficiently “original” such that they could be said to constitute a material part of the copyright work.  This obviously has significant implications for other works which are labour intensive to create, but of themselves, do not contain significant original information.  (Note that Australia does not have an EU style protection of databases).

While the US takes a similar approach to identifying “originality”, the decision has caused us to wonder whether Channel 9 would have been successful under a US style “hot news” misappropriation.  Misappropriation is not copyright based, but rather based on one party “free-riding” the efforts of another.  Misappropriation has much less emphasis on originality and more on timeliness, competition and incentive.  TV guide information certainly satisfies the first four elements:

1.    It’s generated at a cost;
2.    The information is time sensitive;
3.    Use of the information would constitute a “free-ride”; and
4.    Use would be in direct competition with the original product.

However the fifth element – that permitting the “free ride” to occur would reduce the incentive of the originator – might be difficult to establish directly.  Presumably Channel 9 has two concerns – protecting revenue from licensing the TV guide and, perhaps more importantly, the potential for end users to skip advertising content when using an electronic guide together with computer based recording solution.  

Would allowing IceTV to continue reduce the incentive for Channel 9 to continue producing the guide?  Or is the incentive less about the TV guide and more about the advertising supported broadcast business model?

 

(Photo Credit: TheCureMX)

6 Comments on “Hot TV Guides, anyone?

  1. Hi,so long the DVR technology does not identify and stop recording commercials, it should not be much of a problem for the broadcasters with respect to the model based on advt. revenue. Can this be equated to the “first sale” requirement –  that its upto to the viewer to act on the commercial and not the broadcaster, for the broadcaster is only a channel.

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  2. Hi,so long the DVR technology does not identify and stop recording commercials, it should not be much of a problem for the broadcasters with respect to the model based on advt. revenue. Can this be equated to the “first sale” requirement –  that its upto to the viewer to act on the commercial and not the broadcaster, for the broadcaster is only a channel.

    Like

  3. Hi Mukundan

    Even if the DVR doesn’t automatically skip advertising, the technology presents a significant challenge.  As a simple example, most DVRs allow the viewer to skip ahead 15 or more seconds at the touch of a button – thus skipping over advertising instantly.
    Yes, “first sale” (that is, the right for a legitimate “owner” of a copy to sell/rent/dispose of that copy) has often been raised in relation to digital content.  But I think it’s more appropriate to think of the DVR examples in the context of “fair use” rather than “first sale”.

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  4. Hi Mukundan

    Even if the DVR doesn’t automatically skip advertising, the technology presents a significant challenge.  As a simple example, most DVRs allow the viewer to skip ahead 15 or more seconds at the touch of a button – thus skipping over advertising instantly.
    Yes, “first sale” (that is, the right for a legitimate “owner” of a copy to sell/rent/dispose of that copy) has often been raised in relation to digital content.  But I think it’s more appropriate to think of the DVR examples in the context of “fair use” rather than “first sale”.

    Like

  5. Hi Ben,
    fair use with respect to ice tv using the electronic guide and first sale with respect to the viewer! And i donot believe there is anything wrong in having a technology which skips the advt.
    can this case be considered as an indicator of the need to tune your business models as fast as the next release of your software platform?
    because,
    1.  its now upto channel 9 to ‘value add’ its electronic guide over what icetv provides to overcome the impacts identified in this blog.
    2. actually, in this digital world, ‘sweat of the brow’ concept is pretty interesting reason to fall back upon by the court, when its very easy to reproduce in the digital world. that itself is contestable.

    Like

  6. Hi Ben,
    fair use with respect to ice tv using the electronic guide and first sale with respect to the viewer! And i donot believe there is anything wrong in having a technology which skips the advt.
    can this case be considered as an indicator of the need to tune your business models as fast as the next release of your software platform?
    because,
    1.  its now upto channel 9 to ‘value add’ its electronic guide over what icetv provides to overcome the impacts identified in this blog.
    2. actually, in this digital world, ‘sweat of the brow’ concept is pretty interesting reason to fall back upon by the court, when its very easy to reproduce in the digital world. that itself is contestable.

    Like

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