In our first intellectual property update we reviewed the interesting decision of Her Honour Justice Gordon in Telstra Corporation Limited v Phone Directories Company Pty Ltd  FCA 44. Telstra subsequently appealed this decision to the Full Federal Court, who handed down its decision on 15 December 2010 in Telstra Corporation Limited v Phone Directories Company Pty Ltd  FCAFC 149.
At first instance, Her Honour held that the Yellow and White Pages phone directories were not ‘original literary works’ in which copyright could subsist. Gordon J arrived at this decision by a direct application of the High Court decision in IceTV Pty Limited v Nine Network Australia Pty Limited (2009) 239 CLR 458 that literary works may only be ‘original’ if they are created by some ‘independent intellectual effort’ or ‘sufficient effort of a literary nature’. As the information contained in those phone directories was primarily organised and sorted by a computer program, Gordon J found that they were not ‘original literary works’ for the purposes of copyright. For more detail on Her Honour’s reasons please refer to our earlier article here.
Telstra appealed this decision, claiming that Her Honour ought to have held that the extent of the contribution of individual human authors was not such as to detract from the subsistence of copyright in the directories. This argument was dismissed by the Full Federal Court, who unanimously upheld the trial judge’s reasoning that information assembled by an automated process does not constitute an ‘independent intellectual effort’.
This case points out that whilst the utility of computer programs and other automated processes is enormous, relying on them too much may cause a client to lose rights and recourse to justice which would otherwise be readily available.