Right now the High Court is hearing its biggest case for a long time — Ice TV v. Nine Network. It’s not often that the full court presides over a two day hearing. Does the new Chief Justice Robert French want to send a message?
Ice TV upset Nine when it prepared its electronic program guide (EPG), the IceGuide. The Ice Guide copies Nine’s program data — which you can find in your local television guide. Viewers use EPGs like the IceGuide to record television programs a week in advance. US and European television audiences have had access to EPGs for years.
Ice is an Australian company that spotted a gaping hole in the potential EPG market in Australia and began selling the IceGuide to free-to-air viewers with digital recorders. It grew at speed and planned a $4 million public float in 2006. A few days before the float, Nine sued Ice for copyright infringement, causing cancellation.
Ice is a case about access to information. If Nine wins, the end result could be that a lot of stuff you think you can copy and use, you can’t — from the truly insignificant to complex sets of data: sporting fixture lists, weather information, software compilations.
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Facts are said to be beyond copyright’s reach. But Nine believes that spending time and money compiling program guides entitles it to copyright of the guides.
Nine is angry with Ice because EPGs facilitate drift from free-to-air viewing. And when people record programs and skip ads, advertisers shift from free-to-air. So, for Nine, EPGs threaten revenue. The Full Federal Court agreed that Ice breached Nine’s copyright. By copying the program data, it’s claimed Ice took a free ride on Nine’s investment train.
Now the case is before the High Court. The court will no doubt think about some of the things missed by the Full Federal Court. How did Ice’s actions hurt Nine? Are Nine and Ice even competitors?
But the bigger question is what the court thinks about proprietary rights. Are you entitled to own what you produce just because you put time and labour into producing it? Or are property rights intended to perform a social function as well, including, in the case of copyright, dissemination of information?
If Nine wins, the view that you own information for your own gain will trump the idea that copyright is as much about disseminating knowledge as it is about ownership.
Brian Fitzgerald is Professor of IP and Innovation at QUT and is Program Leader, ARC Centre of Excellence for the Creative Industries and Innovation. Ben Atkinson is author of The True History of Copyright.
For more information on EPGs see www.icetv.com.au.