Law and technology

The New Zealand version of the Yellow Pages is facing a fight similar to the one its Australian counterpart had recently, in which an Australian court ruled that there is no copyright in a White Pages or Yellow Pages telephone directory (read my post here). Together with the IceTV case, the Australian courts appear to have decisively moved away from the “sweat of the brow” type arguments favoured in the UK and (to date) New Zealand, instead re-focussing on key principles of originality and authorship. Previous cases involving Yellow Pages and other directories have been before the New Zealand courts (for example, YPG IP Ltd v Yellowbook.com.au Pty Ltd, Auckland High Court 2007; University of Waikato v Benchmarking Services, Court of Appeal 2004), however these have not conclusively settled the question.

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.

An Australian court appears to have completed what the IceTV case almost did nine months earlier, by ruling last week that there is no copyright in a White Pages or Yellow Pages telephone directory (Telstra Corp v Phone Directories, 10 Feb 2010, Federal Court of Australia).

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.

Has IPONZ created a new category of registerable IP?

For the record:

• Copyright protects original works, not ideas.
• Trade marks protect origin, not ideas (or content).
• Patents protect novel, non-obvious, documented inventions, not ideas (or configurations).

Despite what the IPONZ homepage implies, there is no way to prevent someone “having your  idea”. A patent comes close, but protects the invention – not simply “an idea” as such.

It is certainly a good thing to be able to use intellectual property law to protect the improper taking of your intellectual property, but making sure someone else doesn’t “have the same idea”? Not a good idea.

Credit: good spotting by Jonathan Hunt, HuntDesign

In a case that will possibly influence New Zealand law, the High Court of Australia (their highest court) last week handed down a major decision that makes it harder for companies to claim copyright over compilations and databases such as television schedule listings.

After a hearing involving no less than six QC’s (or Senior Counsels as they are now known in New Zealand and most Australian states), the High Court unanimously ruled in IceTV Pty Limited v Nine Network Australia Pty Limited that IceTV, which provides electronic programme guides, did not infringe the Nine Network’s copyright by partially reproducing its television schedule listings.

Continue reading ‘Aussie copyright decision increases scope for fair (dinkum) dealing’ »

The World Digital Library has recently been launched. This is a UN-sponsored initiative to digitise historically significant books (mainly) as well as photographs and other content, and put them online for free public access. The library currently has 1200 exhibits, some dating back over 2000 years, and is expected to grow significantly as museums, galleries, universities and other institutions add content.

This raises a question: who owns the copyright in these historical works? Before you think “who cares – the authors have been dead for centuries”, think again. Continue reading ‘Copyright in historical works in the digital age’ »

If you operate a website, ISP or other online service in New Zealand, a recent law change provides you with a limited, but useful, protection against some types of copyright liability.

The new section 92B (no, not 92A) of the Copyright Act 1994 came into force last year. While the attention was on its “guilt by accusation” neighbour, section 92B has quietly provided all website operators, ISPs, and businesses who have a LAN with what is known in the US as a “safe harbour” provision.

Continue reading ‘A safe harbour from copyright infringement liability’ »

New Zealand’s copyright laws contain an important feature known as the “commissioning rule”. Software developers – whose stock in trade is intellectual property – need to beware of this rule.

Note: the Government is proposing to repeal of this rule. As of April 2009, the amending Bill (carried over from the previous Labour-led Government)  sits at number 18 on the Government’s Order Paper (right after the Dog Control Amendment Bill), so the rule may not be repealed for some time.

Continue reading ‘Copyright ownership and software development’ »

A recent court case in the US upheld an open source software licence in a way that is important for two reasons.

Continue reading ‘Open source enforced’ »