Recent cases have considered whether copyright can subsist in documents or other works that are generated automatically by a computer program.
Businesses frequently rely upon computer programs and databases to automatically generate various documents, reports and other publications required in the business. One example is product information sheets for products which require disclosure of certain technical or safety matters. Where a business is required to produce such documents regularly, it may create computerised systems to automate the process of their production. Given that these documents are an important asset of the business, it is unsurprising that a business may want to protect its investment in the computerised systems that produce such documents. Where a competitor copies these documents, a business may wish to assert their intellectual property rights in the documents generated by the computerised system.
Several recent cases have considered the issue of whether copyright subsists in works generated by computer programs or databases. These cases include Acohs Pty Ltd v Ucorp Pty Ltd (Acohs v Ucorp) and Telstra Corporation Limited v Phone Directories Company Pty Ltd (Telstra v Phone Directories). In both cases, the plaintiffs argued that the documents generated by their respective computer systems were an original literary work under section 32(1) of the Copyright Act 1968 (Cth) (the Act).
These cases consider two important issues: determination of authorship of a computer generated work and determination of whether the work can be considered original under the Act.
The term “author” is not defined in any sections of the Act. However, as stated by the High Court in IceTV Pty Ltd v Nine Network Australia Pty Ltd (IceTV v Nine), an “author” is generally understood as being the person who brings a work into existence in its material form. In the context of a book, for example, this is an easy test to apply. When considering documents generated by a computer program, however, the issue becomes more complex.
In Acohs v Ucorp, a computer program used information contained in a computer database to automatically create material safety data sheets (MSDS). The computer program had been designed for Acohs by a consultant. In order to generate a report using the system, an Acohs employee would enter specific data into the computer program. This data would be combined with information from the database and the relevant MSDS would be generated. The difficultly encountered by Acohs was that the MSDS was generated entirely by the computer program; there was no author of the work, even though the computer program itself had been designed by a human author. Achos sought to claim that the documents were, in fact, prepared by joint authors being the programmers of the software and the employees who individually generated each MSDS. The Court, however, rejected this argument because section 10 of the Act provides that a work of joint authorship requires collaborative work by an author that is “not separate from the work of the other author”. This could not be said to have occurred on the facts, given that the consultant had developed the computer program for the purpose of automatically generating the MSDS and the Acohs employee using that program to generate the MSDS was separate in terms of “communication, time, expertise and content”.
In Telstra v Phone Directories, one issue that arose was the difficulty in identifying all the individuals who may have been involved in contributing to the generation of the telephone directories. The Court held that the “identification by name of each and every author is not necessary … what is necessary, however, is that it be shown that the work in question originates from an individual author or authors”. However, whilst it was noted that organisation of the contributions of individuals would have been required for the production of the telephone directories, the Court held that “this organisation was not collaboration of the kind contemplated by the definition of joint authorship” under the Act and that each contribution was “made quite separately”.
This Australian approach can be contrasted with the United Kingdom legislation which makes it clear that an author, in the case of computer generated work, is the “person by whom the arrangements necessary for the creation of the work are undertaken”.
As established by the High Court in IceTV v Nine, mere skill and labour used in the process of creating a work is not protected by copyright. Instead, in determining whether copyright subsists in a work, the focus must be on the requisite originality of the work, which requires “some independent intellectual effort”. Further, the information provided in the weekly television broadcasting schedules (the subject of the IceTV v Nine case) was not a form of expression which required “particular mental effort or exertion”. The format of the expression of the time and title information for each programme was “essentially dictated” by the “nature of that information”.
In Telstra v Phone Directories, the Court emphasised that “the mere collection of data cannot be sensibly regarded as compilation”, and that “the editorial correction of errors at the proofing stage of a compilation cannot be regarded as authorship”. The Court held that copyright did not subsist in Telstra’s yellow and white page telephone directories on the basis that the efforts of its employees, their skill and labour used in inputting data into the computer program and arranging and ordering the data for its published form, was “insufficient for the purposes of originality.” The employees’ efforts did not involve sufficient “independent intellectual effort” to make the works original.
The above decisions demonstrate the difficulties in asserting copyright in documents generated by a computer program. These difficulties arise either because it may be difficult to establish that one or more persons is the “author” of the work, or because the work of the author, although involving skill and labour, lacks the requisite “independent intellectual effort” necessary for the works to be original.
This outcome is somewhat unsatisfactory given that it does not recognise the commercial and technological realities of modern business activities and how documents may be made separately by individuals over time and in different ways (including through creation of computerised systems). It appears somewhat arbitrary that whether copyright subsists in a work turns on the degree to which a business may or may not use computerised systems to automate some business processes. In light of the reforms in the UK to recognise the authors of a computer generated work, it would be advisable for Australia to consider similar reforms to the Act.
It is, however, appropriate that copyright laws draw a line as to when sufficient “independent intellectual effort” has been made to justify copyright protection. Copyright laws involve a balance between rewarding intellectual efforts, on the one hand, and the benefits of dissemination of ideas and information for the public good, on the other. Businesses need to have regard to how this line might be drawn in the context of their specific business activities when seeking to protect commercially valuable documents.