Telstra has lost an appeal to the Full Federal Court today, which upheld a February Federal Court decision that copyright did not subsist in the White and Yellow Pages.

The unanimous decision by Chief Justice Keane, Justice Perram and Justice Yates was delivered in three separate judgements, all in general agreement with Justice Gordon’s first instance decision. Chief Justice Keane observed that “in my respectful opinion, the decision of the trial judge was correct”. [95]

Chief Justice Keane was convinced by the respondents argument that the White and Yellow Pages “were compiled, not by the individuals engaged to facilitate the process, but by a computerised process of storing, selecting, ordering and arranging the data to produce the directories in the form in which they were published.” [7-8]

For the full decision, see http://www.austlii.edu.au/au/cases/cth/FCAFC/2010/149.html

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The Federal Court has overturned a recent Copyright Tribunal determination that significantly increased the rates payable by the fitness industry for the use of sound recordings in exercise classes.

Fitness Australia appealed to the Federal Court to have the May 2010 Tribunal determination reviewed, arguing that there was a breach of the rules of natural justice in connection with the making of the decision. The Federal Court concluded that the Tribunal had conducted itself “in a way which was procedurally unfair to Fitness Australia”. [at 4]

The appeal essentially turned on whether Fitness Australia had been given an adequate chance to respond to all the evidence considered by the Tribunal in determining the new rate. The Federal Court did not consider whether the rate selected was correct, but rather whether the Tribunal followed correct processes in making its determination.

In particular, the debate largely revolved around the use to which the Roberts Research study was put. The Federal Court stated that, “the position of both parties was that the study was not to be used to fix a rate. It was procedurally unfair for the Tribunal to use the study to fix a rate in light of that clear position.” [at 45]

The case will be sent back to the Copyright Tribunal to redetermine the case.

To read the full decision, see:

http://www.austlii.edu.au/au/cases/cth/FCAFC/2010/148.html

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The Newspaper Licensing Agency (NLA) and its shareholder members have won a copyright case against two companies operating the media monitoring service, Meltwater News, as well as the Public Relations Consultants Association Limited (which represents certain users of the Meltwater News service). The High Court concluded that some of the headlines put forward in the case were independent literary works. The other headlines were considered to form part of the articles to which they relate.

This is the first time a UK Court has directly addressed the issue of whether copyright subsists in newspaper headlines, and the decision is of particular interest given the recent Australian decision of Fairfax v Reed [1], where it was found that copyright did not subsist in the particular headlines in question.

In her decision, Mrs Justice Proudman discussed the comments of Justice Bennett in Fairfax, but said that, “The evidence in the present case (incidentally much fuller than that before Bennett J in Fairfax…) is that headlines involve considerable skill in devising and they are specifically designed to entice by informing the reader of the content of the article in an entertaining manner”. [2]

“In my opinion headlines are capable of being literary works, whether independently or as part of the articles to which they relate. Some of the headlines in the Daily Mail with which I have been provided are certainly independent literary works within the Infopaq test”. [3]

Read the full decision at:

http://www.bailii.org/ew/cases/EWHC/Ch/2010/3099.html

[1] Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd [2010] FCA 984

[2] The Newspaper Licensing Agency Ltd & Ors v Meltwater Holding BV & Ors [2010] EWHC 3099 (Ch), at 70

[3] As per [2], at 71

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2010 has been a big year for copyright in Australia, with several high profile cases concluded and some still pending. The iiNet case was keenly observed both locally and internationally; the Kookaburra case stirred up the passions of the Australian public; a procession of cases influenced by last year’s IceTV decision went to court. As 2010 draws to a close what are the decisions still pending, at home and abroad, that will have an impact?

Roadshow v iiNet

In February the Federal Court ruled that the Internet service provider iiNet was not liable for copyright infringement, as it did not authorise the infringing activities of its users [1]. While iiNet won this first round, the film and television companies that brought the action appealed the decision in the Full Federal Court in August. The appeal decision is pending and the case has the potential to go all the way to the High Court. As discussed in last month’s feature article, this case has significant ramifications for the creative industries and ISPs alike.

Viacom v YouTube

The question of service provider liability for copyright infringement is not only being considered in Australia. A US District Court handed down its decision on a long-running case brought by media companies including Viacom [2] in response to YouTube users uploading copyright materials without permission.

The case tested the operation of safe-harbour provisions in the US Digital Millennium Copyright Act and the degree of protection afforded to service providers. Judge Stanton held that in this instance, YouTube’s general awareness of infringing activity did not disallow the safe-harbour provisions. Furthermore, YouTube was not required to monitor or seek out facts indicating infringing activity.

While Google welcomed the decision this litigation isn't over, as Viacom has filed a notice to appeal. It is likely to be some time before we see another decision in this dispute.

PPCA challenges radio license statutory cap

The copyright license fees paid by Australian radio stations for the use of sound recordings are currently capped (by the Copyright Act 1968) at one percent of a radio station’s revenue. The Phonographic Performance Company of Australia (PPCA) is challenging the cap in the High Court [3], arguing that on its introduction in 1969, the one percent cap amounted to an acquisition of property in contravention of Section 51 (xxxi) of the Constitution.

While the PPCA has never before challenged the cap through the court system, its opposition has been expressed through years of lobbying governments to change the legislation. The PPCA has repeatedly stated that its legal action is not directed at community broadcasters, who would be hard hit by any increase, only to commercial radio stations. This is one to watch for anyone in the music and broadcasting industries.

Google Book Settlement

Google's plans for the mass digitisation of books caused controversy around the world when they came to light, with many authors and copyright owners seeing Google’s actions as infringement on a grand scale. A class action against Google by copyright owners was launched in the US [4] and a settlement was reached in 2008, followed by an amended settlement in 2009 [5].

In February 2010, Justice Denny Chin of the US District Court for the Southern District of New York presided over a hearing to determine whether the amended Google settlement was fair and reasonable. In reserving his decision for a later date the Justice noted that there was much to consider. The outcome of his deliberations will have repercussions for authors and copyright owners in countries around the world, including Australia, but the decision is not expected until next year.

Telstra v Phone Directories

The dispute over Telstra’s phone directories [6] made waves in the area of copyright and compilations. In February 2010, the Federal Court held that copyright did not subsist in the White and Yellow Pages phone directories produced by Telstra.

With reference to the 2009 IceTV decision, the court’s Justice Gordon stated that for copyright to subsist, it was necessary to identify authors and demonstrate that those authors directed their contribution to the particular form of expression of the work. The Telstra judgement was appealed (a decision is not expected until 2011) and the dispute is another potential case for the High Court.

Larrikin v EMI

Despite the victory for Larrikin Music against the band Men at Work in the Federal Court at the beginning of this year [7], a more recent hearing to determine damages set the amount payable well below Larrikin’s initial demands.

Justice Jacobson's decision – that two of the four bars reproduced from Larrikin’s 1934 children’s song Kookaburra Sits in the Old Gum Tree amounted to a substantial part – caused much complaint in the community at large. However, Justice Jacobson later set the amount payable at just five per cent of the royalties paid by APRA/AMCOS since 2002, as well as five per cent of any future royalties. An appeal against the original finding of copyright infringement was also heard this year and the judgement is still forthcoming.

Achos v Ucorp

The judgement on Achos v Ucorp [8] was one of several in 2010 that focused on the importance of authorship and the need to identify the authors who contributed to the work. It was held, amongst other things, that copyright did not subsist in the source code of certain electronic files that were based on data entered into a computer program. The decision has been appealed and the case will continue in March next year.

[1] Roadshow Films Pty Ltd v iiNet Limited (No. 3) [2010] FCA 24

[2] Viacom International Inc. v YouTube Inc, U.S District Court, Southern District of New York, No. 07-02103 (23 June 2010)

[3] Phonographic Performance Company of Australia Limited & Ors v Commonwealth of Australia & Anor [2010]

[4] The Authors Guild, Inc., et al. v. Google Inc., Case No. 05 CV 8136 (S.D.N.Y.)

[5] http://www.googlebooksettlement.com/r/view_settlement_agreement

[6] Telstra Corporation Limited v Phone Directories Company Pty Ltd [2010] FCA 44

[7] Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited [2010] FCA 29

[8] Acohs v Ucorp [2010] FCA 577

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When the Federal Court handed down its much-anticipated decision on copyright in newspaper headlines (Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd) in September, the finding was in line with long-accepted principles that discrete items like titles, names and slogans are generally not substantial or original enough to be protected by copyright.

The case involved allegations by Fairfax Media that Reed International had infringed its copyright in the Australian Financial Review (AFR). Reed had reproduced elements of AFR articles in its ABIX service, which essentially provides subscribers with abstracts of already published articles, together with the (often unaltered) headlines and by-lines of these articles.

It was a particularly significant case given the concerted effort by publishing companies worldwide to try to protect the value of their content in the new online environment.

A key issue was whether copyright subsisted in the headlines of the AFR articles as discrete literary works. In addition, Fairfax argued that each of the following was capable of separate copyright protection, being a work of joint authorship:

- The combination of each article, together with its headline and by-line;

- The compilation of articles in the particular edition of the newspaper including headlines, but excluding other material such as photos, advertisements and market tables; and

- The entire AFR edition work, including photos, advertisements and market tables.

Headlines

In consideration of whether copyright subsists in headlines alone, Justice Bennett noted that while the creation of headlines might involve effort and skill, “headlines generally are, like titles, simply too insubstantial and too short to qualify for copyright protection as literary works”[1]. This question has not been previously been addressed by an Australian court, however Justice Bennett’s finding is a continuation of long-established principles that items such as titles and names alone will not normally be afforded separate copyright protection.

Authorship

The Court also looked at issues of authorship, making substantial reference to the decision in IceTV[2].

Justice Bennett said: “Authorship is crucial for establishing copyright because it is essential to prove that the work originated from an author who expended independent intellectual effort to create the expression in the work”. However she added that where evidence was established of a work of joint authorship, it was not essential for copyright purposes to name every individual author, provided that some authors could be identified as employees with specific roles, and that the skill and labour in relation those specific roles could also be identified. Therefore, it was not necessary for Fairfax to identify every individual involved in authorship of the works.

Article-headline-byline

Fairfax argued that the combination of an article, a headline and a by-line was a work of joint authorship. But the Court found that the contribution of the journalists writing the body of the articles was separate to the contribution of the sub-editors, who edited the articles and wrote the headlines.

Therefore, the Court held that the headline/by-line and article combination was not a distinct work of joint authorship.

Compilation of articles and the edition work

The Court was satisfied that the compilation of articles as well as the edition works were capable of being protected as works of joint authorship, having been produced through the collaboration of a number of authors whose contribution was not separate from the contribution of the others. On the issue of identifying the authors, Justice Bennett noted that it was sufficient for Fairfax to establish which particular employees by role had contributed, as opposed to the specific identity of these employees.

Despite finding that “copyright subsists in the Article Compilation and the Edition Work as original literary works”, there was no finding of infringement because what was protected in this instance was the particular selection, arrangement and layout of materials, whereas the ABIX service did not reproduce such aspects of the AFR works.

Read the full case at:

http://www.austlii.edu.au/au/cases/cth/FCA/2010/984.html

[1] Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd [2010] FCA 984, at 80.

[2] IceTV Pty Ltd v Nine Network Australia Pty Ltd [2009] HCA 14; (2009) 239 CLR 458

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The Federal Court’s decision on Achos Pty Ltd v Ucorp Pty Ltd demonstrates the difficulties that may arise in claiming copyright protection over digital works, particularly where several people have contributed to their creation.

The Court’s June decision denied copyright protection in the source code of certain electronic files that were based on data entered into a computer program. It was yet another recent case addressing the concept of joint-authorship and emphasising the importance of identifying authors whose contribution is not separate from other authors.

The dispute involved Material Safety Data Sheets (MSDS) – information sheets on hazardous substances given out by manufacturers, importers and suppliers of hazardous substances. Acohs and Ucorp are both in the business of producing electronic MSDS.

Achos claimed that Ucorp had infringed the copyright in, amongst other things, the source code underlying several of its electronic MSDS.

Justice Jessup acknowledged that source code is capable of being protected as a literary work, noting: “There is no a priori reason to deny a body of source code…the status of a literary work. It consists of words, letters, numbers and symbols which are intelligible to someone skilled in the relevant area, and which convey meaning.”[1]

However, the issue was whether the source code was “original” and in deciding on the question of originality, the Court emphasised the importance of authorship, referring to the recent decision in IceTV Pty Ltd v Nine Network Australia Pty Ltd[2].

Acohs produces MSDS through its “Infosafe System” computer program, whereby a central database generates the MSDS from information entered into the system by employees or customers. At issue was whether the programmers who wrote the source code for the Infosafe System, and those carrying out the later data entry using that system, were collaborators in producing the source code which Ucorp was said to have copied.

The Court found that the effort of the original programmers was quite separate to that of the data entry authors. Consequently, it held that since the source code was not the work of one author or a work of joint authorship, the code could not be regarded as an original literary work.

Read the full judgment at:

http://www.austlii.edu.au/au/cases/cth/FCA/2010/577.html

[1] Acohs Pty Ltd v Ucorp Pty Ltd [2010] FCA 577, at 47.

[2] IceTV Pty Ltd v Nine Network Australia Pty Ltd [2009] HCA 14.

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