alick.wilson at braithwaite
Mar 16, 2010, 1:48 PM
Post #8 of 26
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Re: [Fwd: Sky Television: Infringement of rights]
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I think there is still a question as to the validity of Sky's claim of
breach of copyright. However, sending a lawyers' cease and desist can be
effective leaving the validity of claimed breach unresolved.
The Nine Network vs IceTV Australian case is interesting.
A commentary is here
http://www.nsw.gadens.com.au/clientaccess/newsletters/Updates (text below)
The court judgement is here
http://www.austlii.edu.au/au/cases/cth/high_ct/2009/14.html
Alick Wilson
----------------------------------------------------
Nine loses trademark infringement case to IceTV
by Danielle Slimnicanovski
After waging a three year battle which ended up in the High Court of
Australia, Nine has been left out in the cold in relation to what it thought
was its intellectual property.
Nine lost its case against IceTV, claiming IceTV took the time and title
information in Nine's weekly programming schedules and improperly used it in
its subscription-based electronic programme guide, IceGuide. With this
decision the High Court has limited copyright protection afforded to
compilers and publishers of factual compilations. Copyright, the Court
said, protects the form or expression of factual information and not the
factual information itself. It's the quality and not the quantity that
matters.
Ice, Ice baby . IceTV is back with a brand new invention
IceGuide, when downloaded, displays details of television shows scheduled to
be broadcast by free-to-air television stations for a one week period. When
used with a digital video recorder, the IceGuide allows viewers to record
television shows and skip through, or fast-forward, the television
commercials.
Nine broadcasts television shows for our viewing pleasure. To help us know
when our favourite shows are on TV, Nine compiles a weekly schedule of the
shows it will broadcast. Nine's weekly schedule contains details of the
time and title of the shows to be broadcast.
Nine's weekly schedule is then provided to Aggregators. The Aggregators
compile an Aggregated Guide which also includes the weekly schedule of all
the free-to-air television networks. The Aggregated Guides are then
distributed to media, such as newspapers, so that viewers can be sure they
get home in time to watch their favourite show - Underbelly!
In preparing the IceGuide, IceTV's uses information they have compiled from
the previous week's IceGuide as well as information in the Aggregated
Guides. Where there is a discrepancy as to the time and title information
of a television show, the IceGuide is changed to match the Aggregated
Guides.
If there is a problem, I'll solve it
In 2006, Nine sued IceTV for breach of copyright. Nine argued that because
they compiled the weekly schedules, they owned them and had copyright in
them. Initially, Nine lost, but then won on appeal to the Full Federal
Court. IceTV then appealed to the High Court.
The High Court decided that the taking of the time and title information
from Nine's weekly schedule did not breach Nine's copyright.
In order for IceTV to have breached Nine's copyright in the weekly
schedules, Nine would have to show that IceTV had taken a 'substantial' part
of the weekly schedule and used it in the IceGuide. This idea of
'substantiality' depends upon the quality and not quantity of the part of
the weekly schedule that was taken by IceTV.
In assessing the quality of the weekly schedules, the Court looked to the
degree of originality or creativity that went into creating them.
Originality, in this case, the Court held, could only be measured against
the 'skill and labour' expended by Nine's employees in compiling the weekly
schedules.
The Court said that while the form of Nine's weekly schedules was original,
the information contained in them was not. As IceTV had not reproduced the
form of the weekly schedules, only the facts, IceTV was held not to have
infringed Nine's copyright.
Implications
For Ice TV, the decision means that it can continue to provide the IceGuide
to its subscribers without permission from Nine.
For viewers and subscribers, it means the IceGuide can be used to check when
favourite shows are playing, record them and even fast-forward (well, let's
be honest, skip) the pesky ads.
And for those who compile and publish compilations of factual material, the
Court's decision means compilers and publishers of factual compilations may
be more at risk of the compilation being used without their permission.
Courts will, of course, look at each claim of infringement of copyright on a
case-by-case basis, but this case shows that compilers and publishers will
need to show a high degree of skill and labour in the preparation of factual
compilation in order to be afforded copyright protection.
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1-letter_to_Nice_Technology - Sky Network Television Limited.pdf
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