Nine’s attempt to break the Ice
By economics professor Joshua Gans
Today, the Federal Court will hear a case brought by Channel Nine against IceTV. The case is drawing interest because it deals with the ability of those who are in markets that provide consumers with new ways of using broadcasts to be able to do so. Specifically, who owns the so-called “guide data” that tells us what Channel Nine is going to broadcast when?
As every technophile knows, IceTV is a start-up that is part of the push to help make a computer the centre of our media life rather than the old TV/VCR combo. I am a user of this type of technology. In my case, it meant buying an old TiVo (the leading brand in digital video recorders) from eBay and using the software upgrades from the OzTivo community literally to record Foxtel programs. At the heart of it was convenience. With community entered guide data uploaded each week, I merely had to ask the device to record The Apprentice any time it was on and it would. No checking the TV guide to see if the show was on nor worrying about Nine randomly changing the schedule. Moreover, when it was recorded, skipping through commercials was a breeze.
IceTV allows more readily available appliances to have a similar capability. You can purchase a hard disk recorder from any outlet and then subscribe to IceTV’s guide data. They don’t provide cable but free to air is covered. It is this guide data that is the engine of the new recorder market and will allow consumers to organise their lives differently. Ironically, IceTV needs to know and use the broadcast schedule so that you can be free of it.
For this reason, this case is interesting and how it plays out, more so. It will tell us about what can be copyrighted and if a mere schedule is something that can be copied. After all, the latter is more information than expression. For example, if someone reviews a television show and says when it will be on, will they need Nine’s permission? If so, might that have a subtle or not so subtle influence on the review itself?
If Nine wins, then what? Presumably a licensing deal. But Nine could simply cut IceTV off. Would this be an abuse of market power? After all, Nine is the monopoly supplier of such data and if IceTV cannot license it, it cannot compete in the market for the “publication” and “use” of that data. Nine may well need to ask the ACCC for authorisation of that conduct. In that case, it will have to argue that being able to choose the form of publication or to indirectly prevent technologies that avoid advertisements would be in the public interest. I wonder if our competition authorities like ads enough to buy that one.