Media | Article
Federal Court rules no copyright in Yellow and White Pages
Tuesday 9 February 2010
In a landmark decision handed down in the Federal Court today Justice Gordon held that Telstra had failed to establish that copyright subsists in the contents of the Yellow Pages and White Pages telephone directories.Telstra and Sensis alleged the publishers of 'Local Directories' distributed in Queensland, Northern Territory and New South Wales had infringed copyright by reproducing entries in the Yellow Pages and White Pages telephone directories.
Justice Gordon held that Telstra's claim failed as Telstra was unable to identify who were the authors of the contents of directories in question, and no "independent intellectual effort" of "sufficient effort of a literary nature" of those who made a contribution was identified. Further, the fact that the contents of the directories were largely computer generated, rather than the result of human authorship was a relevant factor.
Justice Gordon emphasised the relationship between authorship and originality in copyright law, "You must identify authors, and those authors must direct their contribution … to the particular form of expression. Start with the work. Find its authors. They must have done something, howsoever defined, that can be considered original. The Applicants have failed to satisfy these conditions. Whether originality be the product of some "independent intellectual effort" and/or the exercise of "sufficient effort of a literary nature" or involve a "creative spark" or the exercise of "skill and judgement", it is not evident in the claim made by the Applicant".
The decision was eagerly awaited following the High Court's judgment in IceTV v Nine Network in April 2009, which emphasised the importance of analysing whether copyright subsists by reference to the tests set out in the legislation, rather than trying to mould the existing laws to protect something which was not a "work" within the definition of the legislation. Justice Gordon acknowledged that the protection of such data compilation works such as phone directories ought be a matter for future consideration of Parliament.
Implications of the judgment will be far reaching. Works which are data compilations, such as real estate auction results, timetables, sporting fixtures and other valuable compilations, which take a lot of work and cost money to compile, especially where such works are computer generated, are likely to be affected.
Middletons partner Tony Watson, who acted for Local Directories in the case, said "this decision will have a significant impact on compilers of databases. The belief that such works are protected by copyright has been clearly dispelled by this decision. The mere fact that a significant amount of labour or significant money has been expended in producing a work does not make it capable of copyright protection".
