In a decision influenced by the High Court’s reasoning in IceTV v Nine Network (2009), the Federal Court of Australia has found that copyright does not subsist in the White Pages and Yellow Pages directories (‘the Works’) produced by Telstra Corporation Limited and Sensis Pty Ltd (‘the applicants’).

In a decision influenced by the High Court’s reasoning in IceTV v Nine Network (2009), the Federal Court of Australia has found that copyright does not subsist in the White Pages and Yellow Pages directories (‘the Works’) produced by Telstra Corporation Limited and Sensis Pty Ltd (‘the applicants’).

Gordon J states at [344] that in order for copyright to subsist, “you must identify authors, and those authors must direct their contribution (assessed as either an ‘independent intellectual effort’ of a ‘sufficient effort of a literary nature’) to the particular form of expression of the work.”

Some of the reasons that Gordon J found copyright not to subsist in the White Pages and Yellow Pages directories include:

Authorship

• The applicants failed to prove the identity of the authors who contributed to the Works (at [337]).

• Even if the applicants were able to identify authorship as per above, the contributors did not exercise an “independent intellectual effort” or “sufficient effort of a literary nature” enough to be considered an author of the Works within the meaning of the Copyright Act. (at [5]).

• A majority of the Work’s creation process was heavily automated leading to Works created not as the result of human authorship, but computer generated (at [335]).

• The contribution of the people suggested to be authors of the Works was anterior to the work taking its material form (at [338]).

Originality

• Neither the White Pages nor Yellow Pages were “original” as none of those said to be authors exercised “independent intellectual effort” or “sufficient effort of a literary nature” in creating them (at [340]).

• Creation of the Works did not involve some “creative spark” or the exercising of the requisite “skill and judgment”. Substantial labour and expense alone is not sufficient to establish originality (at [340]).

Gordon J affirms [at 46] the role of the High Court’s decision in IceTv Pty Ltd v Nine Network Australia Pty Ltd (2009) 254 ALR 386 as binding authority on the interpretation of the Copyright Act, and later [at 344], notes that “authorship and originality are correlatives”.

For more information, see the full judgment at:

http://www.austlii.edu.au/au/cases/cth/FCA/2010/44.html

Back to top | Permalink

The Victorian Government has endorsed open access to public sector information (PSI), while acknowledging that third party copyright will be a key factor in restricted access to some types of PSI.

The Victorian Government has endorsed open access to public sector information (PSI), while acknowledging that third party copyright will be a key factor in restricted access to some types of PSI.

The Government flagged this two-tiered approach to licensing PSI in its response to the Economic Development and Infrastructure Committee’s final report on Improving Access to Victorian Public Sector Information and Data.

The Government's response is available at http://www.diird.vic.gov.au/diird-projects/access-to-public-sector-information.

Victoria’s response is an important precursor to developments at the national level, with the Commonwealth Government yet to respond to the recommendations of the Government 2.0 Taskforce report, released in December 2009. Movement at both state and national level is part of wider international trend toward using the power of the internet to make government information and data more accessible.

The Victorian Government’s response is relevant to copyright in a number of areas including the following:

Key Victorian Government Findings

• Endorsement of open access principles for Public Sector Information (PSI);

• Acknowledgement that the scope of PSI must be clearly defined;

• Recognition of the difference in potential for re-use of government 'data' versus 'information' – whilst both are types of PSI, machine-readable raw data has greater scope for reuse whereas 'information' (prepared for a particular purpose) may have more limited scope;

• Recognition that there are different types of PSI, which will require different approaches to licensing and release;

• Recognition that one of the key contexts for defining PSI will be consideration of materials held by cultural institutions, archives and other public collections containing works in which the government does not hold copyright;

• Endorsement of creative commons as the default license for PSI (estimated to refer to, potentially, 85% of PSI);

• Endorsement of separate tailored licensing for restricted PSI not falling into the above category;

• Commitment to the development of a whole-of-government Information Management Framework (IMF) that will:

• define the scope of PSI;

• identify government data and information to be released;

• identify PSI subject to restrictions (in particular, for contractual, copyright, or security reasons);

• obtain legal advice as to licensing schemes and potential liability issues;

• release PSI under creative commons licence as a default, and under customised licences where PSI is identified as restricted;

While there are many overall similarities on open access principles, the Victorian Government has taken a more nuanced approach on licensing of PSI than the Government 2.0 Taskforce set up to advise the Commonwealth Government on similar issues (see the Taskforce’s report, Engage: Getting on with Government 2.0, December 2009).

Unlike the Commonwealth Taskforce, the Victorian Government calls for a clear definition of PSI, and recognises the role that copyright of third parties will have in determining the type of licensing suitable for different types of PSI. The Commonwealth Government has yet to comment on the Taskforce’s recommendations and the Victorian Government’s position sets an interesting precedent.

Back to top | Permalink

The Federal Court of Australia found in favour of Larrikin Music Publishing Pty Ltd (Larrikin) in a decision handed down by Jacobson J. The matter centred around whether Australian band Men at Work¹s song Down Under contained a flute solo that infringed the copyright of the Australian children¹s song Kookaburra (sits in the old gum tree), published by Larrikin.

The Federal Court of Australia found in favour of Larrikin Music Publishing Pty Ltd (Larrikin) in a decision handed down by Jacobson J.

The matter centred around whether Australian band Men at Work’s song Down Under contained a flute solo that infringed the copyright of the Australian children’s song Kookaburra (sits in the old gum tree), published by Larrikin.

The matter involved assessing evidence from Down Under’s composers, musical specialists and an analysis of the notes making up both musical phrases

Conclusions reached by Jacobson J that relate to the copyright infringement include the following

• The 1979 and 1981 recordings of Down Under infringe Larrikin’s copyright in Kookaburra as both recordings reproduce a substantial part of Kookaburra

• The above decision does not amount to a finding that the flute riff is a substantial part of Down Under, or that it is the ‘hook’ of that song

The details as to costs and damages are to be decided at a later date.

For more information, including a detailed musical analysis of the two phrases, see the judgment in full at http://www.austlii.edu.au/au/cases/cth/FCA/2010/29.html.

Back to top | Permalink

The Federal Court has found in favour of internet service provider (ISP) iiNet Limited (iiNet) in a matter brought against it by several major film and television studios and also involving the Australian Federation Against Copyright Theft (AFACT).

The Federal Court has found in favour of internet service provider (ISP) iiNet Limited (iiNet) in a matter brought against it by several major film and television studios and also involving the Australian Federation Against Copyright Theft (AFACT)

A foremost issue of the proceedings is whether an ISP, by not taking steps to stop infringing conduct by some its users, thereby authorises the copyright infringement of these users. The importance here is that under the copyright act, a person authorising copyright infringement is viewed in the same way as a person directly infringing copyright and subject to the same penalties.

In deciding the matter, Justice Cowdroy found that:

• Certain iiNet users did directly infringe copyright by making available online, electronically transmitting and making copies of the relevant films.

• Whilst being aware of infringements occurring, and not acting in regard to their cessation, iiNet did not authorise those users’ infringements of copyright, the primary reasons for this being:

1. Internet access itself is not the ‘means’ of infringement – the ‘means’ by which users were infringing copyright was through their use of the BitTorrent system. iiNet has no control or responsibility over BitTorrent system and was thus not providing the ‘means’ to infringement.

2. iiNet did not have a relevant power to prevent those infringements occurring.

3. iiNet in providing only access to the internet, did not sanction or countenance infringing acts nor deliberately structure its products with the purpose of doing so.

• iiNet satisfied safe harbour requirements but was not in need of their protection due to the abovementioned finding.

Cowdroy J’s orders include the dismissal of the application and that iiNet’s costs be paid by the applicants.

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

For more information, please see the following:

• Full Judgement of Cowdroy J: http://www.austlii.edu.au/au/cases/cth/FCA/2010/24.html

• AFACT Press Release:

http://www.afact.org.au/pressreleases/2010/4-02-2010.html

• iiNet Press Release:

http://www.iinet.net.au/press/releases/20100402-federal-court-judgement.pdf

Back to top | Permalink