nic.suzor.net » originality

Casenote: Telstra Corp Ltd v Phone Directories Pty Ltd [2010] FCA 44

nic — Wed, 24 Feb 2010 09:47:49 +0000

Kylie Pappalardo has an excellent case note on Telstra Corp Ltd v Phone Directories Pty Ltd [2010] FCA 44 (Full decision). This case continues the process that began when the High Court tightened the requirements of originality and authorship in IceTV, applying that logic to contain the previous FCAFC authority of Telstra v Desktop Marketing to its facts. The result is very interesting for Australian copyright law: there is no longer any certainty that telephone directories will be protected by copyright, bringing Australia more into line with international authority on this point.

Big news: Fed Court of Australia rules no copyright in telephone directories

nic — Wed, 10 Feb 2010 21:00:01 +0000

Warwick Rothnie is reporting that the Federal Court has declined to follow Desktop Marketing (which held that telephone directories were protected by copyright in 2002) in light of the High Court’s decision in IceTV (which held that copyright was not infringed by taking time and title information from a timetable). Decision is here: Telstra v Phone Directories [2010] FCA 44.

This is very interesting. The argument that IceTV effectively overrules DMS was inevitable, given Telstra’s near monopoly on a relatively lucrative compilation of information. Telstra argued that IceTV’s discussion of DMS was obiter and that the Federal Court would still be bound by the older Full Federal Court decision. As Warwick highlights, Justin Gordon explains that that contention was incorrect: ([46], citations removed)

Before turning to the facts, mention must be made of the decision of the Full Court of the Federal Court in Desktop Marketing. In that decision, copyright was found to subsist in certain editions of WPDs and YPDs. The Applicants submitted that the resolution of the present case remains governed by the outcome in Desktop Marketing and that the High Court’s comments on copyright subsistence in IceTV should be regarded as obiter dicta. I reject that contention. Firstly, IceTV is binding authority on the proper interpretation of the Copyright Act. The reasoning of both plurality judgments establishes principles of law beyond copyright infringement. Secondly, the High Court directly warned of the need to treat Desktop Marketing with particular care: see IceTV at [52], [134], [157] and [188]. Thirdly, Desktop Marketing [...] did not deal directly with the issue of authorship. Rather, all issues in respect of copyright had been conceded other than that of originality. In fact, Finkelstein J (at first instance) questioned the assumptions the parties had made about authorship: Telstra Corporation Ltd v Desktop Marketing Systems Pty Ltd [2001] FCA 612 at [4]. Finally, the facts of this case are significantly different. The WPDs and YPDs in question are different. Moreover, the Genesis Computer System which stored the relational database and which was used in the production of some of the WPDs and YPDs in issue in these proceedings (after September 2001 in the case of YPDs and late 2003 in the case of WPDs) was not in use in Desktop Marketing[...].

Very interesting. It seems that the High Court’s decision in IceTV is already having flow-on effects, bringing Australian copyright law more into line with the higher standard of originality required in the US and other jurisdictions for copyright protection. It seems that Her Honour’s decision was predicated on the lack of identifiable authorship as well as the lack of originality of contributions. The rising importance of authorship is quite interesting; it is something that has been somewhat neglected in copyright law in the past. (See Tim Wu, ‘On Copyright’s Authorship Policy’ 2008 U. Chi. Legal F. 335 (2008) (pre-print at SSRN).)

NSW Premier on open access to timetables

Wed, 11 Mar 2009 06:42:41 +0000

Image from Trainview.

Last week I wrote that RailCorp had threatened the makers of an iPhone app that shows public transit timetables with copyright infringement. Asher Moses reported on Monday that NSW Premier Nathan Rees has "indicated he would override RailCorp's decision and force the bureaucracy to meet the mobile software developers and work out a way they can use the timetable data."

This is encouraging news from the highest levels of NSW government. We can only hope that this is a sign of things to come, and that NSW and other Australian Governments will realise the value in making material open – particularly material that has been created with public funds.

There is still, however, a problem with copyright law that allows the compilers of facts to claim copyright in the facts themselves. This sort of matter shouldn't have to go all the way to the Premier – part of the copyright balance we've generally accepted requires pure information – facts – to be free to reuse, without permission. Lets just hope that the High Court doesn't continue to create a permission based culture in the Nine v IceTV appeal; the cost to innovation is just too high.

Originality and Transit Sydney: Australia’s low standard of originality claims another victim

Thu, 05 Mar 2009 11:35:03 +0000

Asher Moses is reporting today that RailCorp have threatened to sue the developer of Transit Sydney for infringing copyright in their public transport timetables. Transit Sydney is an iPhone app, sold through the store for $2.49 ('just to cover costs'). It provides a display like the one on the TV monitors in train stations that shows the next trains coming past the platform. It pulls timetable data from CityRail for display to people on the move. It's not clear whether the information is pulled dynamically or statically compiled.

RailCorp, for some reason, have threatened to sue the developer, claiming that it infringes on their copyright in their timetables. RailCorp claims that

RailCorp's primary concern is that our customers receive accurate, up-to-date timetable information.

[…]

This includes details of service interruptions, special event services, trackwork and other changes. Third-party RailCorp timetable applications may contain inaccuracies and have the potential to mislead our customers.

I've blogged before about the dangers of inaccurate public transit and geospatial data. Using copyright law to outright prevent the spread of such data, however, does not seem to be the best way to serve the public. Surely it would be more useful for RailCorp to make their (accurate) information more accessible, by providing open interfaces for developers, than to threaten innovative developers with copyright infringement suits. These developers are clearly responding to market demand in a way that the operators of the public transit networks simply have not been willing or able to. I assume that most users of these products would prefer to take the risk of some inaccuracies than to be without – indeed, those risk averse users could simply save themselves $2.50 and rely on the minimal official publications.

This is, unfortunately, an example of copyright law once again failing to achieve a balance between rewarding creators and promoting access to information. In Australia, following DMS v Telstra, the standard of originality for the subsistence of copyright is very low. In that case, a telephone directory was held to be an original literary compilation. This is exactly one of the points currently before the High Court in the Nine v IceTV appeal, where Nine are defending a finding that IceTV infringed on its copyright television schedules by providing an electronic programme guide. Lacking an Australian fair use defence, innovators are in a very difficult situation here.

This is the same argument, once again. Copyright ought to exist to stimulate innovation – it is a temporary monopoly granted to provide the incentives to create expression (at least in the sense of the economic rights). By making expression somewhat excludable, we allow for the private production of an otherwise public good.

But how does this relate to the creation of schedules? Presumably, RailCorp is already rewarded by determining what time their trains will run. They publish this information so that customers will buy train tickets. The goal is not the creation of schedules in and of themselves, but the operation of a rail network. Protecting this bare information serves no public policy goals. Allowing innovators to take this information and present it in a new way in order to respond to market domain does not hurt the operator of the network – if anything, it makes the network more useful and hence increases its value.

Copyright ought to attach to original expression. Unfortunately, Australia's low threshold for originality means that copyright increasingly protects mere facts. There's only a few ways that I can tell you that the Bondi train will be approaching in four minutes. To prevent me from repeating that information doesn't protect the integrity of the train network, it doesn't help consumers, and it certainly doesn't help innovation.

This is another example of the chilling effect of poorly thought out and implemented copyright law. Lets just hope that the High Court can fix the threshold of originality later this year in the IceTV case.

IceTV: Day one of the High Court hearing

Fri, 17 Oct 2008 00:42:46 +0000

Yesterday was the first day of the IceTV v Channel Nine appeal. Here's some links to follow:

A good article by Brian Fitzgerald and Ben Atkinson on the issues: Third Party Copyright and Public Information Infrastructure/Registries: How much copyright tax must the public pay?
A writeup on the first day of the hearing by Peter Vogel: http://vogelross.com.au/vrblog/?p=33
The transcript of the first day of the hearing: http://www.austlii.edu.au/au/other/HCATrans/2008/356.html

A very interesting case. Stay tuned.