The Full Court of the Federal Court in Telstra Corporation Limited v Phone Directories Company Pty Ltd [2010] FCAFC 149 (15 December 2010) held that there was no copyright in either of Telstra’s White or Yellow Pages. The decision effectively reversed the decision in Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd [2002] FCAFC 112.
The case stands for the proposition that, if there is no author, there is no copyright and that where a work is computer generated, it has no author and copyright does not subsist.
The case stands for the proposition that, if there is no author, there is no copyright and that where a work is computer generated, it has no author and copyright does not subsist.
The case details the production of the White and Yellow Pages. There were three phases to their production:
1. The Collection Phase – where the database which contained all names and addresses was maintained, updated and edited;
2. The Extraction Phase – where, by the use of software, the relevant details were extracted from the database for each directory and the sublimation of that information into an electronic form that constituted substantially the form of the directory;
3. The Production Phase – which involved the typesetting of the form of the directory and physical production of the directory.
The Collection Phase involved both automated processes and some human intervention. The Extraction Phase involved a Telstra employee opening a certain computer file, selecting “Modify” and entering relevant details of the directory to be printed and the computer would create the directory. All three judges considered that the Extraction Phase, where the directories took their form, was the relevant phase to consider from a copyright point of view and, because it was automated, no copyright subsisted.
All three judges considered that the Collection Phase should be disregarded for the purpose of determining whether copyright subsisted. Keane CJ held that “the mere collection of data cannot be sensibly regarded as compilation”. His Honour also thought that editorial correction of errors at the proofing stage was not authorship. Yates J took a subtly different approach, stating that “whilst activities such as gathering or organising the collection of material may be relevant authorial activities for copyright purposes, those activities are not of themselves, once engaged in, the subject matter of copyright protection”. This may deny copyright protection to many works where the collection and preparation are extensive but the reduction to writing may involve trifling effort. This result was foreshadowed in the High Court case of IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14. Interestingly, Perram J considered that if the work of the Extraction Phase had been done manually, rather than by computer, copyright would have subsisted.