TiVo and Sky in NZ, episode one

OPINION: The launch of TiVo, which will go on sale on Friday, is a little underwhelming.

Being able to pause and rewind "live" television and record programmes straight to a hard drive without having to fork out for a monthly Sky TV subscription may appeal. But you can do that already with a Zinwell FreeviewHD digital video recorder (DVR) now on sale at Noel Leeming for $699.

At $920, TiVo will let consumers wirelessly shift pictures and movies between computers and their TV screens for viewing. But the real drawcard of TiVo is the ability (for Telecom customers) to download content and services through its broadband connection.

An online library of 135 films at $4.95 or $6.95 a pop and several hundred soap episodes, kids programmes and documentaries is a start, but only that. One might think digital delivery would undercut bricks-and-mortar retailing, but not so. DVD stores have slashed their prices, offering thousands of films for $2 and $4.

TiVo's partnership with Sony, announced on Thursday, that will provide access to a selection of downloadable music videos won't have Sky executives rattled. They may be fancying their chances doing battle with the marketing team of Telecom, which will probably have exclusive rights to sell TiVo for at least a few years.

Hybrid pushed back the launch of TiVo, which was to go on sale yesterday. It is understood Telecom engineers were on Friday still working on software to ensure customers aren't billed for unmetered downloads. They will need to get that sorted.

Sky Television and Maori Television's decision to withhold programme listings from TiVo's on-screen electronic programming guide (EPG) is a handicap.

A Stuff poll carried out for NZ InfoTech last week suggested a third of viewers that were considering buying TiVos may have been put off by that.

Hybrid Television chief executive Robbee Minicola believes those people might think they could not watch the channels using TiVo, but there is nothing to suggest people are in fact confused about what the lack of EPG data actually means. One-touch recording and time-shifted television viewing are the beauties of devices such as TiVo and MySky, and for $920 customers will not want to be making compromises.

For the time being, it seems Hybrid will rely on pressure from viewers to force a change of heart from Sky and Maori TV, inviting customers – through messages on TiVo's EPG – to contact the channels direct if they are dissatisfied with the situation.

Ms Minicola may not have given up hope of forging a symbiotic relationship with Sky and says she has not sought specialist legal advice on the EPG issue.

Victoria University law professor Susy Frankel, who chairs the Copyright Tribunal, says there is plenty of precedent that television programme listings can be subject to copyright.

But, intriguingly, she indicates it is not clear cut that Hybrid would necessarily breach Sky or Maori TV's copyright if it copied their programme titles and broadcasting times into its EPG. The legalities could depend on what information it used, and how.

Whether it would be politically astute for Sky to challenge such an action by TiVo, and what economic loss it would be able to show if Hybrid did simply swipe Prime's programme listing, are perhaps moot points. From a public relations perspective, it is one thing to withhold the EPG data, but might be another to try and effect its forcible removal from consumers' TVs.

DLA Phillip Fox competition law expert Mark Williamson very much doubts Hybrid would be able to take Sky to task for withholding EPG data under competition law, incidentally. That is notwithstanding a Commerce Commerce win against Telecom last month over "data tail" pricing at Auckland High Court that in other circumstances might have had a bearing.

Sky could claim it had legitimate commercial reasons for its decision, as it has indeed done. Spokesman Tony O'Brien says it is concerned about TiVo's inability to track channel ratings and the exclusivity of Hybrid's relationship with Telecom.

Mr Williamson says Hybrid would need to show, among other things, that Sky was exploiting market dominance. That's probably not possible if the relevant market was deemed to be the free-to-air broadcasting market, of which Prime has only a small share.

Unitec broadcasting expert Paul Thompson says it would be better if DVRs such as TiVo and MySky had common technical standards that meant they could be used to watch Sky and Freeview. Successive governments had missed an opportunity to rejig broadcasting industry regulation to make that happen, he says.

- © Fairfax NZ News