Court shock: directories not protected by copyright

Yellow says Australian decision unlikely to apply in New Zealand

Directories businesses such as the Yellow Pages are at risk of being poached after the dismissal of an Australian copyright case last week, legal experts say.

The revelations have left the industry reeling from what legal experts predict will be a boom in opportunistic upstart companies created to scrape million-dollar investments and score an easy slice of lucrative profits.

Justice Michelle Gordon last week threw out damages sought by Telstra subsidiary, Sensis, against rival telephone listing company, Local Directories, for using information from the Yellow Pages and White Pages.

Telstra's case was dismissed after Justice Gordon found information held in the Sensis databases was not protected by copyright law. Experts say the decision will make it harder for other companies to successfully pursue similar action.

However, Toby Sharpe, counsel for New Zealand's Yellow Group, says Australian and New Zealand copyright law over "compilations" is different.

"It would be a big over reaction to think this is the rule in New Zealand," he says.

Sharpe says he has yet to read the full judgment, but a case over TV listings last year indicated things could head this way in Australia.

"Again, it's a different law from New Zealand copyright law," he says.

Justice Gordon ruled that "none of the works were original... [and] none of the people said to be authors of the works exercised 'independent intellectual effort'". She said the database listings did not involve "some 'creative spark' or the exercise of the requisite 'skill and judgement'".

Justice Gordon considered the the watershed defeat of Channel 9 by IceTV last year in her decision. The case affirmed that factual databases, such as a telephone directory, residential listings or event schedules, are not covered by copyright law and therefore can be duplicated by anybody, including commercial competitors.

Sensis group communications manager, Karina Keisler, said the decision is disappointing as it allows competitors to “springboard” off the company’s investment.

“We are disappointed with the result; it is not appropriate to springboard off our time, energy, thought and effort,” she said.

“It does impact us in that it takes away one of our strongest limbs [but] we will survive as the Yellow pages has been around for 130 years and many companies have sought to copy our content.”

Keisler said Sensis will "investigate all available avenues" in regards to lobbying government to expand copyright protections.

The decision puts Australia in line with US laws — albeit 10 years after their formation — which do not consider data compilations such as real estate auction results, timetables and sporting fixtures to be intellectual property. The watershed case in that country was Fiest v Rural Telephone Service in 1991.

Baker and McKenzie partner, Ross McLean, said inserting small amounts of intellectual property into databases would not likely protect the whole compilation.

"You can certainly expect new companies to take advantage — it is a A$1.3 billion market in just telephone directories — and IceTV showed that new players are keen to do thing differently,” McLean said.

“Even if you did [create IP in the database], someone could take the unoriginal part without infringing on copyright.”

McLean said the upside is that small innovative companies can take the data free of charge and “think of better ways of presenting data”.

Chris Round, senior associate at law firm Middletons, which represented Local Directories, said copyright is difficult to establish, in part because the databases are created by hundreds of anonymous people and not a known set of authors.

Sensis was granted 21 days to consider a High Court appeal.

RealEstate.com.au said it is investigating the court decision.

— Additional reporting by Rob O'Neill

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