Yesterday there was confirmation that legal advice pays, sometimes only long term. Phone Directories Company Pty Ltd, a small Queensland-based telephone directory company, struck down giants – Telstra, Sensis and their claims to copyright in listings in the Yellow Pages and White Pages.
Victory came to Phone Directories when yesterday two judges of the High Court of Australia refused the Telstra and Sensis application for special leave to appeal. In Australia the High Court is the final court of appeal.
The result is personally pleasing, it illustrates the benefits of legal advice. I was a copyright law adviser to Phone Directories in the mid-1990s. Fifteen years on, with the High Court result yesterday, Phone Directories has protected the revenue of its successful business.
Telstra’s case launched in recent years was that Phone Directories was breaching copyright in the Yellow Pages and the White Pages. It has involved two federal court cases decided in 2010. We’ll get to these shortly.
As a result Telstra has lost its claim to copyright in listings in the Yellow Pages and White Pages.
The courts have now struck that copyright claim down on the basis that Telstra and Sensis lacked evidence of human authors and originality for the listings in the Yellow and White Pages. Copyright requires human authors, computer generated content is insufficient. Also, claims to copyright can only be made for works that are original.
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The High Court refusal to hear an appeal follows two prior losses by Telstra in lower courts against Phone Directories.
The first was in February 2010 before a single judge of the Federal Court of Australia ([2010] FCA 44). The rationale for that decision is discussed in our article Telstra loses as copyright blowback continues.
The second in December 2010 was on appeal before three Federal Court judges ([2010] FCAFC 149).
Australian copyright law for phone directories is now closer to the U.S. position as set by the U.S. Supreme Court in Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991).
There are many types of failure. Abject failure is almost inevitable where no legal advice is obtained in business. While legal advice does not make success inevitable, it increases the chances of success.
What now for databases and computer generated content?
For owners and developers of electronic databases, claims to copyright protection should be reviewed to assess the legal basis and improve the scope of available legal protection.
Brief practical advice appears at the end of our article titled Phone directories appeal to avoid copyright wipeout.
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