Information on new HD Channels & response to FreeTV's EPG Announcement

[prl]

That's (from my limited understanding) exactly one of the sorts of things that copyright law is intended to give the copyright owner control over - the making of derivative works, i.e. making a new version based on the original. The information isn't "freely available". It's copyrighted.

OK I kind of walked into that :D - I'll elaborate a bit more...
Yes from my limited understanding that is the situation however I believe it is relevant where there is copyright material in the first place.     A list of data eg telephone book, list of people who got married, died, born etc is arguably not copyright as it is factual information in the public domain.  A factual news story that appears in a newspaper is a copyright article in the sense that the writer has composed the words around the facts, however the facts themselves are not copyrighted.  If a muredre happened, it happened and anyone can write an article about it listing all the facts.  Since the tv list of what is on is a factual list, I don't IMHO think that should be copyrightable.  That is what I meant by comparing my use of the list in an EPG form to that of manually using the list to program the device.  If one is legal then so should the other be.

Certainly the layout of the program is copyright, but then the EPG layout is distinctly different to the listings produced by the networks.  I can see an argument where the descriptions of the program are copyright however, it doesn't seem to me that the local networks write their own descriptions of most of the programs as most are the same as that listed on US sites so if anyone holds copyright in those descriptions it should be the US writers.  Unfortunately it seems that in Aus a legal precedent was set whereby a telephone book's list of phone numbers was considered to be copyright - an opposite precedant was set in the US.

It also seems to me that the info is "freely available" in that it is available from numerous sources not just the network list themselves but the numerous online and offline publications, as well as a listing on the digital guide channels that list the shows of the day and of course by turning on a TV and watching it you will see the program being screened. There is no copyright notice on most if not all of these lists.

From US copyright law "Copyright protects the particular way an author has expressed himself; it does not extend to any ideas, systems, or factual information conveyed in the work.  http://www.copyright.gov/fls/fl102.html

In Australia we have "Fair Dealing" provisions.  A quote from this is If you simply restate public information in your own words, you will not infringe copyright.  http://www.copyright.org.au/pdf/acc/infosheets_pdf/G079.pdf

THis of course is all academic as Ice have taken a position,  Channel 9 have sued and lost but are appealing and Ice's method of compilation it seems is such that they are attempting to compile the info independantly.

What you were proposing in the post I originally replied to was to use a program to transform EPG data into the right format for a PVR. I can't see how this is other than a derivative work. It's certainly not "restat[ing] public information in your own words".

I don't believe that it is the layout of the guide (alone) that the copyright lies in; it's primarily in the words of the author(s).

As for copyright on the guides, it doesn't really matter whether they have a copyright notice: "Material is automatically protected by copyright in Australia, under the Copyright Act 1968 ..." and more explicitly, "The copyright notice is a written statement in a form such as “© Stuart Pitt 2005”. In Australia, as discussed above, there is some benefit in using the notice as it will often raise the presumption that the person or company named in the notice is the copyright owner of the relevant material, unless this is disputed. In other respects, the notice has no legal effect in Australia and in most other countries. ... Material that meets the requirements for copyright protection is protected whether or not the copyright notice is used." Australian Copyright Council Information Sheet GO84v2, Protecting your copyright, http://www.copyright.org.au/G084.pdf.

However, even though it's not strictly necessary, all 5 major channels' program guide web pages have copyright notices, the OurGuide TV guide web site has a copyright notice, and IceTV itself has one, and it very explicitly states that it may only be used under the terms of IceTV's license: "IceTV's EPG is its own, original work and IceTV owns the copyright. You may not copy or distribute it in any way except for the personal use for which you obtain license when subscribing to the service." It's also been noticed on the Beyonwiz forum (because the Beyonwiz doesn't display the © symbol correctly in its EPG) that some stations have started adding copyright notices to the FTA EPG.

The Nine law suit against IceTV shows that the stations definitely regard their program guides as copyright, and as I understand it, IceTV's defense wasn't that Nine had no copyright on its guide, but that the IceTV guide was constructed in such a way that Nine's copyright wasn't infringed.

[markb]

...  and I think most people would agree that if I've spent a lot of effort doing the work to make the list, I should have ownership of it.

Well I don't agree! There's little innovation in scouring the web and compiling a list of public facts. So any simple list I compile should be copy-rightable? It's easy to come up with silly list examples but what delineates a list worthy of copy-right from one that's not?

It's clearly un-enforceable and any law so vague should not be a law. Just because a precedent has been set (e.g. the Telstra case) does not mean it is sensible or right.

[IcedCoffee]

What you were proposing in the post I originally replied to was to use a program to transform EPG data into the right format for a PVR. I can't see how this is other than a derivative work. It's certainly not "restat[ing] public information in your own words".

I take your point.  I am just exploring where the line is drawn in the new media.  eg The network's online guide is intended for the public to be viewed in a browser.  In my browser, I may change the fonts, switch off images etc - this is not seen as infringing copyright.  My browser may have other features, eg be smart enough (via a plugin browser helper object) to eg highlight in red, things that interest me - say the name of a show.  (This is not unlike say the Google toolbar that can highlight search words in the page in different colours.)  My browser could be smart enough such that if I click on the names of shows in red, it can send that info to my Media Centre application so it can be recorded.  All the while I was simply using my "smart browser".  

What I am getting at, is at what point am I no longer using a browser and now infringing copyright?  The networks don't specify which browsers I must use or what the browsers functionality should be.  If I were to manually do the steps it is OK but if my browser is smart enough to automate it, I am no longer allowed to use this "smart browser".  I am simply saying that it is interesting that there is a distinction between the two.

I don't believe that it is the layout of the guide (alone) that the copyright lies in; it's primarily in the words of the author(s).

Yes OK so if I list a set of formulae such as e=mc², F= ma, etc even though these are known formulae I can still claim copyright in the list.  If someone now takes that list, and add other formulae and adds descriptions and explanations, I think I would have a very hard time claiming you infringed since my originalwork was a list of facts that I don't own.  

The Nine law suit against IceTV shows that the stations definitely regard their program guides as copyright, and as I understand it, IceTV's defense wasn't that Nine had no copyright on its guide, but that the IceTV guide was constructed in such a way that Nine's copyright wasn't infringed.

I agree that this was the position taken by the stations.  I also believe this position relied on the precedent set by the telephone listing case.  In my view I think this position should be challenged as I believe it was in the US where straight telephone listings are apparently not copyright.  It seems to me that Ice TV chose not to challenge whether Channel 9 can have copyright in the listing.  I am guessing they decided it would be harder to win that case then to prove that the guide was constructed independantly and chose the path that gave them the greatest chance of victory.  

Thanks for all the responses to my "layman" arguments.  In truth I generally agree with you and PVogel in relation to the way the law currently stands but enjoyed the opportunity to explore some arguments as some laws, in my view, could be improved to serve the community better.

[Marc]

The Nine law suit against IceTV shows that the stations definitely regard their program guides as copyright, and as I understand it, IceTV's defense wasn't that Nine had no copyright on its guide, but that the IceTV guide was constructed in such a way that Nine's copyright wasn't infringed.

Correct.

[prl]

What you were proposing in the post I originally replied to was to use a program to transform EPG data into the right format for a PVR. I can't see how this is other than a derivative work. It's certainly not "restat[ing] public information in your own words".

I take your point.  I am just exploring where the line is drawn in the new media.  eg The network's online guide is intended for the public to be viewed in a browser.  In my browser, I may change the fonts, switch off images etc - this is not seen as infringing copyright.  My browser may have other features, eg be smart enough (via a plugin browser helper object) to eg highlight in red, things that interest me - say the name of a show.  (This is not unlike say the Google toolbar that can highlight search words in the page in different colours.)  My browser could be smart enough such that if I click on the names of shows in red, it can send that info to my Media Centre application so it can be recorded.  All the while I was simply using my "smart browser". 

What I am getting at, is at what point am I no longer using a browser and now infringing copyright?  The networks don't specify which browsers I must use or what the browsers functionality should be.  If I were to manually do the steps it is OK but if my browser is smart enough to automate it, I am no longer allowed to use this "smart browser".  I am simply saying that it is interesting that there is a distinction between the two.

The Copyright Act basically says that all unauthorised copying of a work in which copyright subsists is an infringement, and lays out some cases in which it's not (e.g., fair use for research, timeshifting a broadcast TV program, etc.). No doubt there's a lot of case law that clarifies :) what those situations are. It's then up to the copyright owner to say under what circumstances copying is allowed.

I'd guess that owners of the copyright on the Web page would be OK with the automatic highlighting function (and I've no idea whether it would be an infringement). The "and send to a media player" function might well be an infringement, but it may not be something they would consider worth their while pursuing (just as the record companies don't routinely pursue people for ripping CDs for personal use in an MP3 player, even though I imagine that's an infringement).

I'd expect, though, that if someone screenscraped the stations' online TV guides and repackaged it for sale as an EPG for PVRs then the stations would be very likely to pursue it. That's a practice that IceTV appears to be being very careful to avoid.

Copyright owners will always face choices about whether certain infringements of their copyright are worth pursuing.

[IcedCoffee]

I'd guess that owners of the copyright on the Web page would be OK with the automatic highlighting function (and I've no idea whether it would be an infringement). The "and send to a media player" function might well be an infringement,

It seems to me to be a contradiction in the case where the "and send to a media player"  is considered an infringement, but the process where I manually do that step is not considered an infringement.  After all aren't I essentially just a very sophisticated fully programmable machine?  ;D

I'd expect, though, that if someone screenscraped the stations' online TV guides and repackaged it for sale as an EPG for PVRs then the stations would be very likely to pursue it. That's a practice that IceTV appears to be being very careful to avoid.

Agreed but what if someone sold a "smart browser"?  The company are not doing the scraping just selling a tool that can be configured to do it.  Of course this gets into all sorts of other debates eg bittorrent, napster, telcos and ISPs being held responsible for content passing through their network etc  The law is still struggling to deal with these examples.

[prl]

... After all aren't I essentially just a very sophisticated fully programmable machine?  ;D ...

That's more or less what the Turing Test tries to establish (though usually from the reverse perspective) :)

[adsjc]

Yay we got Ten HD and 7HD Data!

Hopefully this will make some people happy! (Just don't mention Battlestar Galactica is missing :-X)

[Matt at IceTV]

An official Service Announcement has just been made regarding the 7HD & TenHD Guide listings within the IceTV Guide on the News & Blog section of the IceTV website;

www.icetv.com.au/news/?p=103

We thank all users for remaining patient while we compile our HD Guide listings for these two new Channels.

Cheers,

mattk

[chopper]

Thankyou.