Life after IceTV: The Federal Court revisits copyright in compilations
Telstra Corporation Limited v Phone Directories Company Pty Ltd  FCA 44
In the wake of the IceTV copyright decision handed down by the High Court last year, a Federal Court judge has considered the copyright in Telstra’s White Pages and Yellow Pages telephone directories. Justice Gordon ruled in the PDC case that Telstra had not established that copyright subsisted in the White Pages and Yellow Pages telephone directories, for three main reasons.
First, the Court held that although many people had contributed to the creation of the telephone directories, many of the “authors” of the directories (within the meaning of the Copyright Act 1968 (Cth)), had not been, or were not able to be, identified.
Second, the Court held that even if the authors could have been identified, much of the work done in creating the telephone directories:
- did not constitute “independent intellectual effort” or was not “sufficient effort of a literary nature” by the contributors such that they could be considered to be “authors” of the directories for copyright purposes;
- was done prior to the telephone directories taking their “material form”, and therefore was not work that could be taken into consideration when determining originality; or
- was computer generated, rather than the result of human effort.
Third, the Court held that the creation of the White Pages and Yellow Pages telephone directories did not involve “independent intellectual effort” or the exercise of “sufficient effort of a literary nature”, as discussed by the High Court in the IceTV decision.
The Judge held that the telephone directories therefore did not constitute “original” works capable of protection under the Copyright Act.
The Judge also distinguished the PDC case from an earlier decision of the Full Federal Court in Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd (2002) 119 FCR 491, which had held that copyright did subsist in various telephone directories. The Judge held that the earlier case differed from the PDC case, as the authorship of the telephone directories had not been challenged by Desktop Marketing Systems.