Everyone knows the White Pages and the Yellow Pages. It's
where our fingers do the walking. Telstra's phone directories
have been a significant part of its business for a very long
It's understandable that Telstra went all the way to the
High Court to protect its rights in its phone directories. It was
big news when the High Court refused Telstra's special leave
application last week. The case looked at whether copyright
subsisted in the phone directories, and as a consequence whether
Telstra could stop people reproducing them. It didn't and they
couldn't. The decision is a blow for any business that deals
with computer generated compilations.
Copyright subsists in 'original works'. By
'work' we're talking about music, artwork, films,
writing, performances and software. By 'original' we're
talking about something that's distinct and that's required
the application of some independent intellectual effort to make it.
In this case the issue was whether the directories were
The phone directories are compilations of factual information. A
compilation can attract copyright protection provided that the
compilation is original and the product of independent intellectual
effort. The problem for Telstra was that the final form of the
directory was computer generated. People were involved in
collecting the data, but it was a computer that crunched it all
together and spat out the final, material form. It's this
extraction phase in which it's critical that there is
independent, intellectual, human effort in order for copyright to
For Telstra, this was fatal to their case. The fact that the
directory was computer generated meant that it wasn't original
and didn't attract copyright protection. In another similar
decision a couple of years back, the High Court found that
copyright didn't subsist in a compilation of TV programming
guides. They didn't satisfy the originality requirement
It's a pretty big deal for businesses that compile factual,
database type information. This could include sports fixtures, race
listings, timetables, auction results and other types of
directories and schedules. Often a lot of work goes into gathering
information for a database. It's a problem if you can't
stop people copying it just because you use a computer to compile
it and give you the end product.
The case highlights the schism between what's legal and
what's commercial. It's crazy if you can't protect the
product of your business's efforts in preparing a database or
compilation. But the courts can only work with the legislation
that's before them. That means it's up to parliament to
save us now.
Questions? Give us a call.
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