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)