FEDERAL COURT UPHOLDS RIGHTS TO COPY DATABASES
The Federal Court of Australia has dismissed a case brought by Telstra subsidiary Sensis, brought against a competitor local listing company to prevent it from using information derived from Telstras white and yellow pages phone books.
The Federal Court Judge in Telstra Telephone Directories Pty Ltd v Phone Directories Company Pty Ltd  FCA 44, ruled that information contained in Telstra’s databases isn’t protected by copyright law.
The ruling means that factual databases like phone directories, TV event schedules, real estate listings in databases such as realestate.com.au, sporting fixtures and other similar databases may be able to be legally duplicated.
The case clarifies the law on the copyright rights of database owners following the ‘Ice TV case‘ (IceTV Pty Limited v Nine Network Australia Pty Limited  HCA 14), in which the Court held that the question whether authors acquire copyright rights in material gathered, collected and organised into a database or factual compilation depends on whether they have invested a “sufficient effort of a literary nature” to be considered an author under Australian copyright law.
The Federal Court’s decision in the Telstra aligns Australian law on factual compilations or databases more with US law.
In the Federal Court Case of Telstra Corporation Ltd v Phone Directories Company Pty Ltd  FCA 44, the Federal Court of Australia held that copyright only exists in factual compilations or databases under Australian Copyright legislation, where there has been some creative spark or “independent intellectual effort of a sufficient literary nature“.
The question of whether a factual compilation qualifies for copyright protection is a question of fact and degree and is contingent on the level of originality invested in the selection, co-ordination and arrangement of facts aggregated by the maker.
The decision renders collections of data in phone directories, television program guides, real estate listings and football and sporting fixtures vulnerable to duplication by commercial competitors.
The Federal Court’s ruling adheres to a standard akin to the position in the United States decision in the case of Feist v Rural Telephone Services, in which the United States Supreme Court held he US Supreme Court held that in merely taking 1,309 names, towns, and telephone numbers from the Defendants’ white pages phone book, the Plaintiff had not taking anything ‘original’. The company had merely taken raw data, which as the Court clearly stated, ‘like news, facts or abstract ideas, are not subject matter which copyright law was intended to protect’.
The US Court reasoned that whilst the defendant might have been the first to discover and report the names, telephone numbers and towns of it’s subscribers, this data represented no more than uncopyrightable facts which existed before Rural reported them, and will continue to do so.
The Court stated that to establish copyright ownership in the phone book, the Plaintiff would have had to establish a sufficient degree of originality in the co-ordination, selection and arrangement of those facts, which they failed to do. The Plaintiff wasn’t able to persuade the court that there was enough creativity involved in arranging subscribers’ names in an alphabetised form.
The Federal Court, after surveying the existing case law on copyright in factual compilations or databases under the Copyright Act in Australia, held that there needs to be some “creative spark” in the selection, arrangement and co-ordination of such material and that investing “substantial labour” and / or “substantial expense”, as was held in previous case law, was no longer sufficient for copyright to subsist in the data contained in the telephone book.
The Court noted that the scope of database protection for compilations of fact under Australian law was not as broad as that offered by the European Database Directive 1996.
Telstra gave evidence as to the manner in which the contents and directories were generated. The Court attached significance to the fact that Telstra was unable to identify the authors of the contents of the relevant directories, and no “independent intellectual effort” of “sufficient effort of a literary nature” was identified amongst those who had made a contribution.
The fact that the directories’ contents were mostly computer generated as opposed to the result of human authorship was also a significant factor in the Court’s finding.
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