16 Dec 2010

Computer-generated compilations not protected by copyright, says Full Federal Court

Telstra's mostly automated method of creating a compilation from a database means that the resulting compilation is not protected by the Copyright Act because the compilation is not a literary work originating in the intellectual effort of an individual (Telstra Corporation Limited v Phone Directories Company Pty Ltd [2010] FCAFC 149).

In rejecting Telstra's appeal the Full Federal Court has confirmed that the output from databases is unlikely to be protected by copyright without some intellectual effort or exercise of skill and judgment.

Why Telstra's directories aren't protected by copyright

Telstra and Sensis produce the Yellowpages and Whitepages directories from a database. The information in the directories is (mostly) rolled over from last year's. Changed or new information about individuals and businesses will be entered into a database by different people, some of whom are not employees but contractors, or even automatically by the computer system.

As the information is entered into the database, the computer system automatically checks that it complies with Telstra's rules that control the content and presentation of listings.

The actual compilation (that is, the selection of data and its arrangement in the final form of a directory) occurs at a production stage, using computer software and automated processes.

This lack of human involvement in the production of the compilation was fatal to the claim that it was an original literary work, and hence meant that the directories were not protected by copyright, both in front of the trial judgeand on appeal.

Who does this affect?

This decision does not just affect phone directories, but any compilation of factual material produced by software from a database.

This might include sporting fixture lists, television program guides, gig guides, timetables and the like.

One possible solution, as we suggested when the original decision was handed down in February, is a legislative change to create a new form of copyright that specifically protects databases, with a lower threshold of subsistence and a lesser period of protection.

This might not be a total solution, however. There are doubts as to the extent of the protection offered by the European Community's Database Directive (96/9/EC); last week the UK Supreme Court referred a case to the European Court of Justice to decide if football fixture lists were protected (Football Dataco Ltd & Ors v Yahoo! UK Ltd & Ors [2010] EWCA Civ 1380).

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.