The High Court of Australia has refused Telstra special leave to appeal a Full Federal Court decision handed down earlier this year.
Full Federal Court Proceedings
Telstra brought the Federal Court claim of copyright infringement against Sensis’ competitor, Phone Directories Company, which had transcribed Sensis directory information and sold its own directories with display advertising. The Federal Court found that Telstra’s directories division, Sensis, did not hold copyright over its Yellow Pages and White Pages directories.
The decision only affects the line listings in the directories, and leaves undiminished Telstra’s copyright in the artwork, display advertising and other elements in the White Pages directories. But as the listings are the “bedrock” of its business, Telstra said after the decision that it was being punished for maximising listing revenues by automating their production (Sydney Morning Herald 07/09/2011). Chief Justice Patrick Keane said that under the Copyright Act 1968, copyright subsists in a literary work created by an individual or individuals. Given this, any argument about whether or not the Yellow and White Pages were literary works was overrun by the fact that individuals had been taken out of the production process. 
Sensis had argued that people contributed to the production process, for example, by using software to extract telephone numbers. But Chief Justice Keane found that the compilation of the listings “did not originate from an individual or group of individuals”, but was overwhelmingly the work of Sensis’ Genesis computer system. Sensis had wanted the High Court to clarify, amongst other things, exactly what steps in the production chain determine the ”human origin”.  But with leave to appeal refused, this avenue is closed to Telstra and Sensis. The Sydney Morning Herald has reported that Telstra intends to lobby Attorney-General Robert McClelland for copyright to be legislatively extended.
Sensis had warned that the Full Federal Court ruling could have ramifications for owners of other data compilations, such as real estate auction results, transport timetables, TV guides and sporting and betting directories. Scott Buchanan, a partner at DLA Phillips Fox specialising in intellectual property and technology, said the ramifications of the decision for copyright owners and users were significant. He said the decision was a win for users of informational databases and would allow software developers and application developers to use directories to create business opportunities. 
1. Telstra Corporation Limited v Phone Directories Company Pty Ltd  FCAFC 149.
2. Ibid at .
3. Mitchell Bingemann, “Telstra Battles Directory Ruling: Directory Copyright Battle”, The Australian 21 January 2011.
Read the Sydney Morning Herald story here.
For inquiries relating to publishing and copyright law please contact Adam Simpson.