A recent 2011 decision by the Federal Court of Australia in
Dynamic Supplies Pty Limited v Tonnex International Pty
Limited1 (Dynamic Supplies)
provides further clarification on copyright protection of
Dynamic Supplies follows a line of recent
cases2 in emphasising that, in order for a copyright
work to be original, the work must have independent
These cases are in contrast with the earlier line of decisions
which found that mere 'sweat-of-the-brow' is sufficient for
the determination of subsistence of copyright in compilations.
Dynamic Supplies involved a dispute between two printer
cartridge suppliers, Dynamic Supplies Pty Limited
(Dynamic) and Tonnex International Pty Ltd
(Tonnex) in relation to a compilation work
consisting of a searchable compatibility chart for printer and
computer consumables on Dynamic's website (March 2008
The Court concluded that cumulatively, the skill and labour used
by Dynamic's employee, Mr Campbell, in creating the March 2008
CSV file was 'more than negligible' and therefore
constituted an original literary work.
The reasons for finding this were:
The selection of material was a personal assessment made by Mr
Campbell of what information was valuable to the customer.
In expressing the material a personal assessment was made by Mr
Campbell as to the greatest utility of the form of the
The arrangement of the chart in columns by Mr Campbell was a
result of intellectual effort.
A comparison of the judicial findings in Dynamic
Supplies and other recent cases provides useful clarification
of where the line will be drawn by the Courts in respect of what
will, and will not, constitute sufficient 'intellectual
effort' to satisfy the requirement of originality for the
purposes of copyright subsistence in compilation works.
In Telstra v Phone Directories it was found that the
work of arranging the information in the Yellow Pages and White
Pages directories was done primarily by computer programs rather
than human authors. There was found to be insufficient work by
human contributors involving intellectual effort directed at
producing original expression or arrangement of the information for
copyright to subsist in Telstra's directories.
In Acohs Pty Ltd v Ucorp Pty Ltd3 the
layout, presentation and appearance of the Material Safety Data
Sheets (MSDS) which were transcribed from existing MSDS were not
original compilations because transcribers did not make any
original contribution and the layout, presentation and appearance
of the MSDS were controlled by a computer program.
In Primary Health Care v Commissioner of
Taxation4 the prescriptions and health summaries of
patients were not substantial enough to qualify as original
literary works and the relevant skill, labour and effort was
directed towards patient diagnosis rather than the expression of
The key messages to take home from Dynamic Supplies and
the other recent cases are that:
There is a fine line in determining whether copyright will
subsist in a compilation as an original literary work.
A close assessment must be made about how a compilation has
been created and by whom, and whether any 'intellectual
effort' has been undertaken.
For there to be 'intellectual effort' there must be
some human effort expended in the expression (as opposed to the
mere creation) of the work.
Where the expression of the work involves some automated
process then the work might not be protected by copyright.
Partner Scott Buchanan, based in Melbourne, specialises in
commercial IP and is responsible for the trade marks group in
Australia. You can reach him at firstname.lastname@example.org
Jessie Bridge, based in Melbourne, is a graduate lawyer in the
intellectual property team. You can reach her at
1  FCA 362.
2 IceTV Pty Ltd v Nine Network Australia Pty
Ltd(2009) 239 CLR 458 and Telstra Corporation Ltd v Phone
Directories Company Pty Ltd (2010) 273 ALR 725
This publication is intended as a general overview and
discussion of the subjects dealt with. It is not intended to be,
and should not used as, a substitute for taking legal advice in any
specific situation. DLA Piper Australia will accept no
responsibility for any actions taken or not taken on the basis of
DLA Piper Australia is part of DLA Piper, a global law firm,
operating through various separate and distinct legal entities. For
further information, please refer to www.dlapiper.com
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