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

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.