In a decision influenced by the High Court’s reasoning in IceTV v Nine Network (2009), the Federal Court of Australia has found that copyright does not subsist in the White Pages and Yellow Pages directories (‘the Works’) produced by Telstra Corporation Limited and Sensis Pty Ltd (‘the applicants’).

In a decision influenced by the High Court’s reasoning in IceTV v Nine Network (2009), the Federal Court of Australia has found that copyright does not subsist in the White Pages and Yellow Pages directories (‘the Works’) produced by Telstra Corporation Limited and Sensis Pty Ltd (‘the applicants’)

Gordon J states at [344] that in order for copyright to subsist, “you must identify authors, and those authors must direct their contribution (assessed as either an ‘independent intellectual effort’ of a ‘sufficient effort of a literary nature’) to the particular form of expression of the work.” Some of the reasons that Gordon J found copyright not to subsist in the White Pages and Yellow Pages directories include: Authorship

  • The applicants failed to prove the identity of the authors who contributed to the Works (at [337]).
  • Even if the applicants were able to identify authorship as per above, the contributors did not exercise an “independent intellectual effort” or “sufficient effort of a literary nature” enough to be considered an author of the Works within the meaning of the Copyright Act. (at [5]).
  • A majority of the Work’s creation process was heavily automated leading to Works created not as the result of human authorship, but computer generated (at [335]).
  • The contribution of the people suggested to be authors of the Works was anterior to the work taking its material form (at [338]).

Originality

  • Neither the White Pages nor Yellow Pages were “original” as none of those said to be authors exercised “independent intellectual effort” or “sufficient effort of a literary nature” in creating them (at [340]).
  • Creation of the Works did not involve some “creative spark” or the exercising of the requisite “skill and judgment”. Substantial labour and expense alone is not sufficient to establish originality (at [340]).

Gordon J affirms [at 46] the role of the High Court’s decision in IceTv Pty Ltd v Nine Network Australia Pty Ltd (2009) 254 ALR 386 as binding authority on the interpretation of the Copyright Act, and later [at 344], notes that “authorship and originality are correlatives”

For more information, see the full judgment at: http://www.austlii.edu.au/au/cases/cth/FCA/2010/44.html More information on the decision can be found at: Copyright.org.au