Vol 7 No 1 - Roger Williams University School of Law
Vol 7 No 1 - Roger Williams University School of Law Vol 7 No 1 - Roger Williams University School of Law
eproduced, though there be no ingenuity in thearrangement or presentation of that data.Quite apart from matters of policy, it might be said thatthe very nature of copyright requires the work to be theproduct of creative thought. The first copyright statutewas enacted “for the Encouragement of learned Men tocompose and write useful Books.” These books werenecessarily the result of the author’s intellectual effort.That was also true of other works (engravings,sculptures, dramatic works and the like) that were givencopyright protection by the early statutes. But acompilation is of a different character from a work of artor literature. This is especially true of a compilation offacts that are in the public domain. For this type ofcompilation to come into existence, the facts must beselected, collected, arranged in a particular fashion, andthen produced in some form. It may be possible todescribe as creative the processes of selection, collectionor arrangement. But the creativity is of a different orderfrom that involved in producing a work of art orliterature. The English cases seem implicitly to acceptthis proposition, because the originality requirement for acompilation could not be the same as for other works.More particularly, when it was held that copyright couldsubsist in a work such as a chemist’s stock list (Collis v.Cater), the preparation of which involved no intellectualeffort, it was apparent that a work could be original inthe absence of creativity. The old view of originality haddisappeared. So, copyright protection could be claimed bya person who brought out a directory in consequence of anexpensive, complicated and well organised venture, evenif there was no creativity in the selection or arrangementof the data.That being the law in England in 1911, it became thelaw in Australia in 1912 when the English statute wasadopted as the law in this country.65The difficulty with the approach espoused by Judge Finkelstein is65. Id. at paras. 8, 9, 84-85.
that if creativity is not required as an element of originality thencopyright is awarded for the effort of collection and, in essence,provides copyright protection of the facts. This approach becomesproblematic if the judge, (as Judge Finkelstein did in this case),takes a broad view of what amounts to copying in order to protectthe labour of the data base compiler. While the CD versions of thebooks contained enhancements, the judge seem minded to protectthe labours of Telstra from wholesale copying by finding thatinfringement had occurred:In substance, the respondents say that “the look, feel,arrangement, functionality, extent of information,accuracy and purpose [of the CD-roms] are all radicallydifferent” from Telstra’s products. They also contend thatthe visual appearance is different because the entries arealphabetically ordered by postcode, not arranged ingeographical areas, contain full mailing addresses, have alayout that is continuous rather than in columns onpages, and are displayed in different fonts. Whencompared with the yellow pages directories, therespondents say that these differences are heightened bythe fact that no advertisements are taken and theheadings are not proximate to a group of business namesand addresses. Instead, each business entry has itsclassification entered as part of the data shown inrelation to that business. As for the headings, it is saidthat there has been no reproduction of the compilation ofheadings because what has been reproduced areindividual headings in relation to individual records ofdata . . . .In this case, the substance of the information that hasbeen taken from Telstra’s works (the directory portion ofthe directories and the headings that appear in the yellowpages directories and headings books) has beenreproduced in the CD-roms. It must be remembered thatcopyright is not claimed for each particular entry,because copyright does not subsist in each individualrecorded fact. It is claimed in the whole of the collecteddata, ordered in a particular way. As regards thedirectories, the significant recorded facts (name, address,telephone number, and the relevant type of business) are
- Page 26 and 27: United States Supreme Court quoted
- Page 28 and 29: copying of “a work protected unde
- Page 30 and 31: shall be null and void.65 Member st
- Page 32 and 33: determining the fate of database pr
- Page 34 and 35: The compilation of a database requi
- Page 36 and 37: management information, including c
- Page 38 and 39: one congressional witness noted:
- Page 40 and 41: that were made after the initial te
- Page 42 and 43: preferred language of many business
- Page 44 and 45: the sui generis right mainly serves
- Page 46 and 47: the Paris Convention for the Protec
- Page 48 and 49: directly or indirectly.159 In other
- Page 50 and 51: of resources that qualifies that po
- Page 52 and 53: wish to encourage private lawsuits,
- Page 54 and 55: contract.”185 While section 1405(
- Page 56 and 57: The Directive will inevitably drive
- Page 58 and 59: the process through which digital p
- Page 60 and 61: the United States or the trade and
- Page 62 and 63: patent law is the utilitarian ethic
- Page 64 and 65: a work to be publicly identified as
- Page 66 and 67: the United States, the power of the
- Page 68 and 69: Theory one proposes to reward the a
- Page 70 and 71: of intellectual property rights mus
- Page 72 and 73: only such as are original, and are
- Page 74 and 75: emedies set forth in section 1406.T
- Page 78 and 79: the same, or substantially the same
- Page 80 and 81: with respect to “patents of inven
- Page 82 and 83: Because, in part of the joint reaso
- Page 84 and 85: even by the plaintiffs today.86The
- Page 86 and 87: statute: the “Limited Times” re
- Page 88 and 89: head of power. It is not clear whet
- Page 90 and 91: elationship of power between the Co
- Page 92 and 93: history dealing with either provisi
- Page 94 and 95: the parameters of the propertizatio
- Page 96 and 97: the legislative power contained in
- Page 98 and 99: negative pregnant that suggests tha
- Page 100 and 101: scope of the Commerce Clause in the
- Page 102 and 103: gave incentive for people to expres
- Page 104 and 105: ejected this purported distinction
- Page 106 and 107: talk, communicate or consume inform
- Page 108 and 109: frameworks that will allow diversit
- Page 110 and 111: that a monopolist should not seek t
- Page 112 and 113: motivating force.While antitrust or
- Page 114 and 115: unjustifiable anti-competitive cond
- Page 116 and 117: his refusal to sell or license his
- Page 118 and 119: defense and exploitation of the cop
- Page 120 and 121: the information age there have been
- Page 122 and 123: In response to Intel’s argument t
- Page 124 and 125: Court of First Instance in concludi
that if creativity is not required as an element <strong>of</strong> originality thencopyright is awarded for the effort <strong>of</strong> collection and, in essence,provides copyright protection <strong>of</strong> the facts. This approach becomesproblematic if the judge, (as Judge Finkelstein did in this case),takes a broad view <strong>of</strong> what amounts to copying in order to protectthe labour <strong>of</strong> the data base compiler. While the CD versions <strong>of</strong> thebooks contained enhancements, the judge seem minded to protectthe labours <strong>of</strong> Telstra from wholesale copying by finding thatinfringement had occurred:In substance, the respondents say that “the look, feel,arrangement, functionality, extent <strong>of</strong> information,accuracy and purpose [<strong>of</strong> the CD-roms] are all radicallydifferent” from Telstra’s products. They also contend thatthe visual appearance is different because the entries arealphabetically ordered by postcode, not arranged ingeographical areas, contain full mailing addresses, have alayout that is continuous rather than in columns onpages, and are displayed in different fonts. Whencompared with the yellow pages directories, therespondents say that these differences are heightened bythe fact that no advertisements are taken and theheadings are not proximate to a group <strong>of</strong> business namesand addresses. Instead, each business entry has itsclassification entered as part <strong>of</strong> the data shown inrelation to that business. As for the headings, it is saidthat there has been no reproduction <strong>of</strong> the compilation <strong>of</strong>headings because what has been reproduced areindividual headings in relation to individual records <strong>of</strong>data . . . .In this case, the substance <strong>of</strong> the information that hasbeen taken from Telstra’s works (the directory portion <strong>of</strong>the directories and the headings that appear in the yellowpages directories and headings books) has beenreproduced in the CD-roms. It must be remembered thatcopyright is not claimed for each particular entry,because copyright does not subsist in each individualrecorded fact. It is claimed in the whole <strong>of</strong> the collecteddata, ordered in a particular way. As regards thedirectories, the significant recorded facts (name, address,telephone number, and the relevant type <strong>of</strong> business) are
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