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Tuesday, August 26, 2008


IceTV Granted Special Leave to Appeal

Today IceTV was granted special leave to appeal to the High Court.

Another copyright case in the High Court? Be very afraid.

In May 2008 the Full Federal Court handed down its decision in the IceTV case, overturning the first instance decision and cementing (or so we thought...and so we will probably find out again) the far reach of copyright protection in Australia for compilations. IceTV's production of a subscription based interactive electronic program guide (EPG) was found to infringe copyright in Channel Nine's program schedule. Nine contended that IceTV had indirectly copied their program guides by using online aggregated guides. The Full Court (from the people that brought you Desktop Marketing) found that regardless of how IceTV created their EPG template (IceTV claim this was created by actually watching the television and noting down the programs and times, a process described as 'torture' at [41]), they did breach copyright by incorporating last minute program changes made by Channel Nine (IceTV compared their template to the schedules available in aggregated TV guides and updated accordingly). By updating the programming guide IceTV took a substantial part of Nine's program schedule and infringed copyright.

The Full Bench noted that the question of substantiality depends more upon the quality rather the quantity of what is taken:

"When the quality of the material taken by Ice is considered, the substantiality of the part taken becomes even clearer" (at [115]).

Apparently by 'copying' week to week changes IceTV "appropriated the most creative elements of the skill and labour utilised by Nine in creating the Weekly Schedules" (at [115]).

Will IceTV get up on appeal? Magic 8 ball says 'outlook not so good'...but the battle rages on...and we wait with bated breath.

Kim Weatherall has written some excellent commentary about the case here and here. It is also worthwhile to take a look at IceTV Iced: Kangaroos Hopping Mad by U.S. copyright guru, Bill Patry.

[Update: The High Court transcript is now available. Further reading at Peter Vogel's blog (IceTV's former CTO) and slides from this presentation by David Lindsay which Cath linked to earlier.]

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Anonymous Peter Vogel said:
As the guy who had the idea, some 20 years ago, to recreate the TV guide by observation and prediction, I've written some thoughts about the whole sorry saga on my blog

Peter Vogel
(Who once told Nine "so sue me")
Blogger peterv said:
I have been at the High Court today, my report of the day's hearing is here:

Peter "so sue me" Vogel
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