The New Zealand case is due to be heard in the High Court in May. The clear and forceful Australian judgments will surely be influential on the Court’s ruling (assuming the Telstra case is not overturned – it is being appealled), bearing in mind that New Zealand’s Copyright Act does have some important differences to Australia’s.

It is quite possible that by years end New Zealand will be on the road to adopting the more tightly focussed copyright law that has found favour in Australia. However, it will likley require at least one appeal to the Court of Appeal (and ideally another appeal to the Supreme Court) to set an authoritative precedent.

If this decision is upheld (it could yet be appealed to the Australian High Court, the nation’s highest court) it means that Australia has essentially adopted the position of the United States Supreme Court in Feist Publications v. Rural Telephone Service, which involved similar facts.

While the Feist case, and now the Telstra case, concerned telephone directories, the rulings cover compilations of facts generally. The rulings are clear: compilations of facts, without any “creative spark”, are not copyrightable regardless of the effort expended. There is now considerable disparity with the UK approach, which has tended to support the “sweat of the brow” approach rejected by Australia and the US.

The New Zealand courts have yet to conclusively determine this question, but the Australian High Court decision in IceTV and now the Telstra case will be persuasive. Australia’s copyright law is similar to New Zealand’s, and there is good reason to think that New Zealand will follow Australia’s lead in this area.

The New Zealand operator of the Yellow Pages (or simply “Yellow” on this side of the Tasman) is understandably unhappy about this. Likewise, the losing party in the Telstra case said:

“We are disappointed with the result; it is not appropriate to springboard off our time, energy, thought and effort.”

It is easy to sympathise with this view. However, the IceTV and Telstra cases are powerful restatements that, fundamentally, copyright is about originality not effort. Indeed, section 14 of the Copyright Act provides that copyright only exists in “original works”. If it’s not original (i.e. the product of independent intellectual effort), there is no copyright. In the Telstra case, the Federal Court came to this stark conclusion:

“None of the Works [i.e. the directories] were original. None of the people said to be authors of the Works exercised “independent intellectual effort” or “sufficient effort of a literary nature” in creating the Works. Further, if necessary, the creation of the Works did not involve some “creative spark” or the exercise of the requisite “skill and judgment”… For those reasons, I do not consider that copyright subsists in any of the [directories].”

In other words, the databases in question were simply collections of facts, and facts are (generally) not copyrightable.

This ruling (if upheld) opens the door in Australia for substantial third-party copying of databases for free. For content providers, the lesson is clear: copyright law can protect your originality, but not necessarily your effort.