Telstra loses directories’ appeal

In Telstra Corporation Limited v Phone Directories Company Pty Ltd [2010] FCAFC 149 the Federal Court Full Court rejected Telstra’s appeal against Justice Gordon’s decision earlier this year that Telstra does not have copyright in the White Pages and Yellow Pages directories as they are not original literary works.

Chief Justice Keane accepted the contention of the defendants that “the directories 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. ”

He confirmed that while “It may be that if the author of a work is the employee of another person, ownership of the copyright may vest in the employer; but copyright in a literary work can subsist only if it originates from an individual. This case highlights the difficulty confronting a claim to copyright in a literary work which is compiled by an automated process.”

In this case it was clear that “Numerous individuals, some identified and some not, contributed to the work preparatory to the compilation of each of the WPDs and YPDs, but the compilations were brought into the form in which they were published primarily by an automated computerised process.”

He rejected the argument that the directories should be regarded as a work of joint authorship.

If Telstra does not appeal further it may lobby for a change to the Copyright Act.

UPDATE 21 January 2011: Telstra has applied to the High Court for special leave to appeal

UPDATE 2 September 2011: THe High Court refused Telstra’s application for special leave to appeal

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