Wide Area News
List but not least
by Russell Brown
Why broadcasters won’t give up their forward TV listings without a fight.
The head of the country’s largest print publishing company is not the first person you would expect to declare that he no longer recognises copyright, but that is essentially what Fairfax’s chief operating officer, Peter O’Hara, did recently in the National Business Review.
Naturally O’Hara was speaking not of his own company’s copyright but that of the major New Zealand television broadcasters – and, specifically, their programme listings. Ever since the Listener lost its state-ordained monopoly on forward TV listings, the broadcasters have regarded programme information as their intellectual property, to be sold rather than given away to print publications that wished to use it.
O’Hara told NBR’s John Drinnan, however, that the listings are “actually providing a service for the networks” and that things had moved on since the old Listener days.
The Fairfax chief’s sentiments will doubtless be shared by his newspaper rivals at APN. But does he really have a case? The situation is quite unclear.
The new media weblog Synthetic Thoughts has pointed out that there is no New Zealand case law behind the broadcasters’ assumptions, and that the British case usually quoted dates from 1984, when the Radio Times and TV Times had a Listener-like lock on forward listings. But the blog also quotes Frankel and McLay’s opinion in Intellectual Property in New Zealand that while copyright “does not protect facts or information, it does protect compilations of facts, the way particular facts are organised”, and that the compilation of the TV schedules constitutes sufficient originality to “justify protecting the schedules as compilations of a literary work”.
Unless Fairfax escalates its current spat with TV3 to the courts, we won’t really know.
So much for the theory. In practice, the secure ownership of TV listings is more important to broadcasters than it has ever been. The key to personal video recorders (PVRs) – hard-drive- based digital recorders that can be set to automatically record an entire series of programmes, or even any programme in a given genre – is the electronic programme guide, or EPG.
Without an EPG for a given channel, the PVR user is back to the old-fashioned practice of manually setting start and stop times for given programmes. The PVR service launched by Australian pay-TV operator Foxtel earlier this year was badly weakened by the absence of listings for the Seven and Ten networks from its onscreen EPG. Foxtel had not been able to strike a deal with the rival broadcasters.
Foxtel’s sibling, Sky TV New Zeal-and, has not made the same mistake. When it rolls out its new “My Sky” PVR decoders (the same boxes as those deployed by Foxtel) in December, the EPG will include listings from all the free-to-air broadcasters. Until My Sky was unveiled recently, it had been far from clear that Television New Zealand would grant Sky access to its listings.
But, in a sign of how sensitive these matters are, Sky doesn’t actually have a deal yet – just an “interim under-standing”, according to TVNZ’s head of digital, William Earl.
“It’s not final,” says Earl. “There’s still a whole range of issues to be resolved, but we believe there’s no question at all that they’ll be resolved by the time the service is launched.”
Earl won’t venture into exactly what the matters for discussion between TVNZ and Sky might be.
“That’s the subject of a negotiation with Sky that has only just begun,” he says. “The service doesn’t actually appear until December, and there’s no point in obliging Sky to mess around with the technology at their end, when we each have a will to resolve the issues.”
But some quid pro will be expected?
“That’s what negotiations are about.”
One concession to the free-to-air broadcasters is already present in My Sky: although viewers will be able to fast-forward through ad breaks in programmes they have recorded on their PVR, there will be no ability to automatically skip commercials. Although some PVRs in the American market offer such a feature, Sky New Zealand joins its British and Australian siblings in not doing so.
So, finally, what does the man from TVNZ think of the man from Fairfax’s views about “moving on” from copyright in listings?
“You may quote me in the following manner: An absolutely hysterical burst of laughter ensued.”
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Here’s something you probably didn’t know: for the past 10 years the New York Times and the Washington Post have been giving each other a heads-up on each other’s front-page stories. Indeed, very few people knew about the secret arrangement between the two papers – ostensible rivals – until it was revealed recently in a story on the website of Editor & Publisher magazine.
In the old days, when papers were printed on site, the Times and other papers would have taxis waiting outside the Post building for first editions. Each paper also paid people, including staff at the other paper’s office, to supply copies as promptly as possible. These days they simply exchange electronic copies between 10.30 and 11.00pm every night before publication.
This means that when one paper has a raging scoop the other will not be completely embarrassed and will be able to scramble together a story – perhaps even quoting its rival. You can’t imagine it happening in London.
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