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
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
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
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".
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