Sensis moves to appeal ruling that says phone directories are not protected by copyright

Telstra phone directories subsidiary Sensis will seek leave to appeal to the High Court over a Federal Court decision which said its phone directories were not protected by copyright law.

Telstra launched Federal Court action against Local Directories, which distributed directories in Queensland, the Northern Territory and New South Wales, back in 2007 on the grounds that it had infringed copyright by reproducing data found in the phone books.

But Telstra lost its case in February 2010 after Justice Michelle Gordon said a lack of “creative spark” in the creation of the directories meant they were not afforded copyright protection.

Telstra appealed, but that was dismissed in a judgement handed down by Chief Justice Patrick Keane in late December.

Keane said the database was “overwhelmingly” put together by a computer system, rather than individual authors.

Keane essentially agreed with Gordon’s position, effectively ruling that the director databases were compiled by Sensis’ computer system, known as Genesis. The lack of human involvement in the compilation meant the creative spark needed for copyright protection was not there.

“The mere collection of data cannot be sensibly regarded as compilation. I would also suggest that the editorial correction of errors at the proofing stage of a compilation cannot be regarded as authorship.”

However, Telstra has sort leave from the High Court to appeal the decision.

Sensis said yesterday it believes the case has “wider implications” and the company wants to keep its legal options open.

However, whether the appeal has much of a chance is another matter.

The High Court recently considered the vexed issue of copyright protection for databases of publically available information is 2009 in a case between Nine Network and electronic program guide company IceTV.

Nine argued IceTV had infringed its copyright by aggregating its weekly program schedule into its electronic program guides.

The High Court found that while Nine had put skill and labour into making programming decision, there was minimal skill and labour involved in actually setting out those decisions in the programming schedule. As such the ability for Nine to protect the schedule from being copied was restricted.

Another potential option for Telstra may be to press the Government to examine laws that offer specific protection to companies that collect and maintain databases, as exists in Europe.