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High Court closes book on Telstra

The High Court has refused Telstra's application to appeal the Full Federal Court's decision that copyright did not exist in its Yellow Pages and White Pages listings.

user iconThe New Lawyer 12 September 2011 The Bar
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THE High Court on Friday refused Telstra's application for special leave to appeal from the Full Federal Court's decision that copyright did not exist in its listings for its Yellow Pages and White Pages telephone directories. 

The Full Federal Court's decision was delivered in December 2010, and stands as authority for the proposition that works that are largely computer generated will not have the required originality to be protected as copyright works.


Lisa Egan, a partner of Middletons who acted for Local Directories successfully defended Telstra's application to the High Court, said the impact is far reaching.

"Australian courts will not protect works which are compiled principally by automated means, no matter how much labour and expense has gone into producing such compilations. The downfall in Telstra's case was its inability to identify human authors who had undertaken the tasks which produced the listings in the printed directories, rather these tasks were largely computer generated."

The High Court decision shuts Telstra out from any further avenues of appeal on the question of whether copyright subsists in its listings in the White Pages and Yellow Pages directories. 

In February 2010, Justice Gordon determined that no such copyright subsisted. This decision was upheld on appeal by the Full Federal Court. An appeal from that decision has now been denied by the High Court.

The High Court's finding focuses the protection of copyright works on the principles enshrined in the Copyright Act, and the need to establish a work is original, which in turn requires authors, said Egan. 

The Full Federal Court has made it clear that this requirement is one for human authors, rather than computers. 

Egan said the case demonstrates that the courts will not allow the boundaries of copyright law to be stretched to protect works which bear no "independent intellectual effort" or "sufficient effort of a literary nature" of identifiable human authors.

"The case brings to an end a long running dispute over copyright in phone directories. The impact of the decision is wide reaching as it can affect any data compilations of essentially factual information. This can include sporting fixtures, real estate auction results and timetables. If such works are largely computer generated, with human authors not contributing to the material form of the compilation, then it is unlikely that copyright law in Australia will prevent the compilation from being copied. 

"Businesses who deal in this sort of information may need to look carefully at their business model to ensure they are operating in a way which is still capable of attracting copyright protection."

Comments from the High Court last week echoed the sentiments of the Chief Justice in the Full Federal Court's decision, that works such as those which Telstra was seeking to protect have been given legislative protection in Europe. 

"However this is not the law in Australia and whether or not it should be is a matter for Parliament to decide," said Egan. 

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