The case is important here in New Zealand for what it says about compilations since our law is similar in many ways. It is also noteworthy because our own Yellow Pages provider, Yellow Pages Group is embroiled in its own long running battle with an Australian firm, yellowbook.com.au, which is alleged to have scraped YPG's data to produce its own New Zealand directories. That case goes on appeal to the New Zealand Court of Appeal (our penultimate appellate authority) in March 2011.
The Telstra decision's analysis of authorship rights, when there are multiple authors and the identity of some is unknown, is interesting. However, the issue I think has more far-reaching impact, and which seems to have become central to the decision, is whether automatically generated compilations can attract copyright protection (although I note from an interlocutory decision in the New Zealand YPG case that automation does not appear to be an issue in that case).
In Telstra, it was held that the creation of Telstra's Yellow Pages (and White pages) directories was effected by use of Telstra's Genesis Computer System, which took data held in databases and created the directories according to various rules. It was therefore held (at paragraph 89 Chief Justice Keane's analysis, for example):
The compilation of the directories was overwhelmingly the work of the Genesis Computer System or its predecessors. The selection of data and its arrangement in the form presented in each directory occurred only at "the book extract” or "book production” process. The compilations which emerged from the operation of the computer system do not originate from an individual or group of individuals. Indeed, none of the individuals who contributed to the production of the directories had any conception of the actual form in which they were finally expressed.
This raises a few questions in my view:
I'd be glad if that was the case - that New Zealand law does not disallow copyright protection for works automatically generated by computer. That may well be the case under Australian law, although I'd be interested in any of my Australian colleagues' views on my questions. But, to me, that fails to recognise the increasing use of computers to generate all sorts of works, both utilitarian and artistic. More importantly, it ignores the fact that computers and application software are worthless without the skill and labour of the person who uses them to output something - it is that skill and labour that should be the determinant.
And, for the future, what of the creations of artificially intelligent computers?
UPDATE: 14 January 2011
As expected, the Sydney Morning Herald reports Telstra has appealed to the High Court (Australia's highest court).
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