IceTV in Crikey

My post last week on guide data (click here) has been redone in today’s Crikey.

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.

12 thoughts on “IceTV in Crikey”

  1. It’s pleasing to see this issue getting some attention; I even saw a small piece on Lateline Business addressing the court case.

    After nearly three months, Senator Coonan finally wrote back to me with my questions about ownership of this. Though not answering my questions directly, she (through her adviser) confirmed that “there are currently no ‘non-commercial’ means … for the public to access program schedule information”. There is no obligation to do so under the Broadcasting Services Act, nor the Commercial Television Code of Practice.

    However, under Digital Television Broadcasting regs, the “national broadcasters” (presumably SBS and ABC) “must provide information to commercial broadcasting licensees and to the other national broadcaster in a timely manner, at no cost, and in a form that reasonably enables its inclusion in an Electronic Program Guide”. It doesn’t cut both ways; there’s no obligation on commercial broadcasters to do anything with their data.

    So, in the whole realm of EPG regulation, the only obligation is that on the public broadcasters to (at their own cost) enhance the cartel’s profitability by handing over their schedule information.

    From the other comments and tone of the letter, I don’t think Senator Coonan sees this as a problem. So much for the free-market side of politics. Let’s hope we get more traction with the progressives and reactionaries.

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  2. “It doesn’t cut both ways; there’s no obligation on commercial broadcasters to do anything with their data.”

    Under the latest revision of the Broadcasting Services Act, it seems they do. See Schedule 2, Part 3, Clause 7, (2B) & (2C). It’s a near carbon copy of the national broadcaster conditions, except that it specifically applies to commercial broadcasters.

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  3. Thanks, Tex.

    Quoted verbatim from the Minister’s desk, dated 11/10/2006:

    “Schedule 4 of the BSA, which relates to Digital Television Broadcasting, specifies that national broadcasters must provide information to commercial broadcasting licensees and to the other national broadcaster in a timely manner, at no cost, and in a form that reasonably enables its inclusion in an Electronic Programming Guide (EPG). However, this requirement does not extend to commercial broadcasters, and there is no requirement for this information to be made available through non-commercial means.”

    Is the Minister (pardon the pun) misguided? Should I send a follow up letter pointing out this section? How can I do this to best effect?

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  4. Hi PeterV,

    It wasn’t from a press release or other public source. It’s on a piece of A4, bearing the Minister’s letterhead, sitting in front of me. It was sent to me by Sarah McNamara who wrote that “The Minister has asked me to respond on her behalf” and she signed it with “Adviser” under her name. I read that as meaning she is a political adviser, not a public servant. As far as I’m concerned, this is an official piece of correspondence from the Minister.

    I’ve read the relevant section of the Act (as pointed out by Tex) and the quoted statement seems at odds with the legislation. I’m also unsatisfied that these regs apply only to Digital broadcasting, as claimed by the Minister.

    At the very least, the Minister should be asked to reconcile her statements with the law.

    Thoughts?

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  5. Hi Greg,

    Hmmm…
    After scanning the whole Act, it seems Schedule 2 is concerned with standard conditions, whilst Schedule 4 is concerned specifically with digital television broadcasting.

    Nothing in Sch 2 defines it as analogue-only – so, which takes precendence? Confusing this is that sometimes Sch 4 seems to assume Sch 2 sets out the basic conditions, and that Sch 2 itself refers to Sch 4 for its definition of an EPG – see Sch 2 subclause 7(2D) & 7(2E).

    At this point, my lowly techie-self defers to those with more experience in interpreting these things!

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  6. Well, I’ve put the above points to the Minister and so expect to hear something about it the New Year.

    I’ll put a follow-up here when I get some news.

    -Greg.

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  7. It seems to me that Nine have a few too many irons in this fire and we need some Ice to make digital TV cool in Australia. I think the idea of a program guide being copyright is absurd. The channels can only benefit from its publication – they DO want us to know what’s on don’t they? Maybe they don’t want us time-shifting… well all they have to do is make the program guide inaccurate. Oh, wait on, they already do that by shifting starting and ending times 10 or 15 minutes. Can something that is intentionally inaccurate be copyrighted? There is, of course, an electronic program guide for Nine already. If you’re a Foxtel IQ subscriber you can time-shift to your heart’s content. I guess Nine’s content to have you time-shift on their terms… i.e. when you’re paying for the privilege! I wonder where Micro$oft sits in this controversy. Windows MCE is crippled without an EPG and that can’t be good for sales. Nine and MSN are too strong a mix for my liking. I think I’d like some Ice with that.

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  8. Can Microsoft be taken to court?

    They are selling MCE, which clearly, does not perform as advertised without the EPG.

    This breaks a number of consumer laws.

    Then maybe MS can pressure Nine etc to release EPG?

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