Federal Court rules Sensis has no copyright on directories

The Federal Court of Australia has ruled that Sensis holds no copyright to its White Pages and Yellow Pages directories (or, at least, the ones Sensis tendered in evidence to prove that they do).

Catchwords: INTELLECTUAL PROPERTY – whether copyright subsists in White Pages and Yellow Pages directories as original literary works – central concepts under the Copyright Act 1968 (Cth) – centrality of authorship – whether the contributions to the directories involved the necessary independent intellectual effort or sufficient effort of a literary nature

340: None of the Works 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”.

347: For those reasons, I do not consider that copyright subsists in any of the WPDs listed in Annexure A or any of the YPDs listed in Annexure B. I will direct the parties to bring in a proposed minute of orders to give effect to these reasons for decision by 4:00pm on 12 February 2010.

This finding raises some large questions around how companies can protect their own works that are created by a diverse workforce that this interpretation of copyright law does not consider to be “authors”: the programers, business analysts, managers, customer representatives, and the company as a whole that collectively creates large works.

The answer may be to sit tight and wait for parliament to introduce legislation similar to the EU’s 1996 Legal Protection of Databases Directive:

30: As the High Court observes, there is no counterpart in Australian law. It is not open to me to ignore the express words of the Copyright Act to expand protection consistent with that set out in the Directive as summarised by the High Court. That is a matter for Parliament and, in my view, a matter which they should address without delay.