The recently decided case of State of Victoria v Pacific
Technologies (Australia) Pty Ltd (No 2)  FCA 737 (10
June 2009) is another example of the court refusing to allow
copyright to be used to create monopolies in short phrases, tag
lines, slogans and titles.
In the case, the Federal Court determined that copyright did not
subsist in the words:
"Help-Help-Driver-in-Danger-Call-Police-Ph.000" (the Help
In 1995 the Victorian Government passed regulations requiring
taxi owners or licence holders to fit driver duress alarm systems
that displayed messages in an approved form. In 1996 the Victorian
Taxi Directorate approved specifications providing that the duress
alarms played the Help Words in an emergency. Pacific Technologies
had previously lodged a patent application for a duress alarm that
displayed a message "consisting of something such as the Help
Words." Pacific Technologies therefore claimed to be the
author of the Help Words and sought "a determination of
reasonable remuneration for the use of the Help Words by the State
There was no contest on ownership; this case turned purely on
whether copyright was able to subsist in the Help Words. Justice
Emmett identified the following well-founded points.
"Copyright is concerned with the protection of the
expression of ideas and not with the protection of ideas as such.
Literary work comprises more than mere ideas.
A literary work may be expressed in print or writing,
irrespective of the question whether the quality or style is
high... However, there must be some work involved in its production
of a literary work, in the sense that it is necessary for the
author to add something of substance in the form of the expression
of ideas... [which will] be a question of degree in any given
Generally, short sentences, including titles, slogans and other
short phrases have consistently been refused protection, [since
they are] too insubstantial or too short to qualify as a literary
work for the purposes of the Copyright Act... even though skill and
labour has been expended on their creation.
The Help Words are not a form of literary expression, but a
setting down of several simple words in the nature of saying
something in ordinary parlance. They are no more than a simple
instruction. They are not words that should be afforded monopoly
They do no more than state an idea. [As is the case here,] when
the expression of an idea is inseparable from its function it forms
part of the idea and is not entitled to the protection of
It would be inappropriate for the Help Words not to be
available for use by anybody without the consent of Pacific
His Honour found that copyright did not subsist in the Help
Words on principles that closely resemble those of the recent High
Court decision in IceTV Pty Limited v Nine Network Australia
Pty Ltd  HCA 14 (22 April 2009).
The critical takeouts of this case are that whilst copyright is
an automatic right, it is not a right which will attach to all
types of "literary works". Short phrases, slogans and tag
lines are difficult to protect using copyright, but are best
protected by trade mark registration.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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