Or Must we return to the age of pen and quill, and why the Oxford English Dictionary matters to phone books
The dust is now starting to settle on the Australian High Court's decision to call 'time' to the longstanding question of whether copyright subsists in the White Pages and Yellow Pages telephone directories. Now that the answer is resolved as 'no', what does it mean more broadly for affected industries?
Having worked on this matter for years with our colleagues at Sensis, it can be easy to dive into the detail, so let's recap.
In Australia, copyright in things like phone books has long been assumed, although the question will be tested from time to time. 'Compilations' are a curious beast. Specifically said to be relevant works in the Copyright Act 1968 (Cth), the term is otherwise undefined. That said, compilations are assumed to encompass anything which involves the gathering of information into one place. The debate usually arises over whether there is sufficient selection or arrangement (or some other criteria) which justifies copyright subsistence on the grounds that they are "original" works.
True it is, people might regard these types of works as quite humble, bearing in mind that subjective judgments are dangerous in copyright law. Do we really want to debate whether James Joyce's Ulysses is 'in' whereas a simple haiku is 'out'? (Some might vote the reverse...)
In any event, in the 19th century, it was the utility of compilations like directories and railway timetables which helped confirm their protection in the UK, because it was recognized from a policy perspective that the effort of collecting, arranging and publishing this information deserved reward. Otherwise, given the relatively small and incremental effort needed to copy them for commercial use, the original producer might be discouraged from the task in the future, leading to - say - thousands of confused and un-coordinated train travellers...
Turning now to the present day, the policy position around the world for continuing copyright protection of compilations has somewhat resembled these confused travellers in recent years. O'Connor J of the US Supreme Court said 'no' to the protection of 'garden variety' telephone directories in the earlier 90s, the EU introduced a Database Directive providing more limited term sui generis protection, and Australia continued to protect phone books via the early 2000s decision in Desktop Marketing.
IceTV, as many know, was the apparent game changer which led to Sensis losing copyright protection in the listings of its phone books. People care about the Ice TV decision because it opened the door for third parties to copy or scrape TV guides, catalogues and other sorts of functional compilations.
We're happy to run a forum on the ins and outs of Telstra v PDC if needed, but given this is a blog, let's keep the message simple. Please people, don't assume all the hype just yet, namely, that this case means that copyright in compilations is over.
The take out lessons are these:
- In assessing whether a work is 'original' for copyright law, the courts are now keener than ever to see its 'authors' plainly identified. This will be hard for many makers of compilations, because so many people are involved. If the work is unpublished, it will also be necessary to show that each of these people is "qualified" (in that each person has a relevant connection to Australia)
- The question of what an author must do to be called one, in relation to a compilation at least, is not 100 per cent resolved. It remains open as to whether the 'author' must have been involved in all aspects of the process. The phone books didn't have one central 'editor'. Such a person might be regarded as an author...but we don't really know.
- The biggest problem for Sensis was the use of computers to help bring the works into existence. These were said to nullify any relevant contributions by the persons who preceded their intervention. If the production of the work is not computerised, much of Telstra v PDC may not apply.
- The case concerned copyright protection of the listings in the phone books, and did not cover the layout of such works, or independent elements such as display ads. So, be cautious not to apply the case too literally, without thinking through all the relevant elements.
DO COMPUTERS DISQUALIFY? (and the OED)
Let's have a think about the role of computers and copyright works for a second. It is possible to construe the Telstra v PDC case so that the role of computers will effectively break the causal connection between an author and the resulting work. This is a real struggle to accept. After all, those who configure or specify databases, or other computerised elements could be authors too. [A nod to Gummow J in IceTV, and Mark Davison's work, for this suggestion.]
A useful way to test this question is to reflect on the development of the first edition of the Oxford English Dictionary. The OED took more than 70 years to compile. Its guiding principle, which was tremendously labour intensive, was its rigorous dependence on gathering quotations from published or otherwise recorded use of English, and using them to illustrate every single word in the language. The project was conceived so the lexicographer was "an historian...not a critic" (see The Surgeon of Crowthorne by Simon Winchester, 1998).
The undertaking was the combined action of many hundreds of unpaid amateurs, as well as paid workers. Volunteers had to read and make word lists of all that they read, looking for certain words that interested the Dictionary team. These slips were submitted, reviewed by a team of assistants, sorted into bundles, and placed into pigeon-holes. Then, editors determined which quotes best suited their needs. Dr Murray, the chief editor would then write the definition.
And here's the juicy bit. How many pigeon-holes do you need for the OED? Well, they started with 1,029. Then, banks of shelves were built as the volume and sheer weight of the slips became too large. Eventually, a 15 feet by 50 iron and corrugated tin construction called The Scriptorium came into being.
You might suggest, that's just like a database!. Well might you ask:
- If akin to a database, should the carpenters of the Scriptorium be regarded as 'authors' of the OED? We'll let you decide.
- Should the Scriptorium disqualify the efforts of the volunteers? Again, up to you.
- To satisfy what may be the current description of an 'author', can one realistically expect either a volunteer or an editor to be involved in all elements of the production of the OED? And what would make this contribution sufficiently 'authorial'? [It does make you wonder whether the courts are giving the role of author too much to do. Don't forget the legislative test is actually whether the work is 'original'. Case law has informed the term 'original' so much, it now deserves its own volume of the OED!]
- Does everyone have to be in the same room for a joint enterprise to be called a work of joint authorship? Another big copyright question.
- Should one draw a distinction between a 'glorified filing cabinet' (ie a database) and those parts of the computer which are more transformative...? ...This is starting to get interesting!
In relation to the last point, we'll leave you with this thought. Computers do a lot nowadays. Computer programs have changed the way architects work, the way music is produced, and the way subject matter can be read. They are not monolithic, but do different things. So, if Jay Z develops a song (say, with sampling techniques), using synthesisers and computerised assistance to add elements to it - then based on a possible extrapolation the current law - is he truly the author of a musical work? [This one is certainly in the 'wait and see' category.]