In Telstra Corporation Limited v Phone Directories Company Pty Ltd [2010] FCA 44 Justice Gordon of the Federal Court decided that, applying the principles of the High Court decision in IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14, Telstra does not have copyright in the White Pages and Yellow Pages directories as they are not original literary works.

Justice Gordon decided that:

1. None of the directories is an original literary work: there were many contributors to each Work, but Telstra could not identify who provided the necessary authorial contribution to each Work.
2. Even if the human or humans who “contributed” to each Work were capable of being identified (and they are not), much of the contribution to each Work:
2.1 was not “independent intellectual effort” and further or alternatively, “sufficient effort of a literary nature” for those who made a contribution to be considered an author of the Work within the meaning of the Copyright Act;
2.2 occurred before the Work first taking its “material form” ;
2.3 was not the result of human authorship but was computer generated.

Whilst copyright can be held in compilations they must satisfy the originality test. In this case, Telstra could not prove the identity of the authors. The judge found that the directories were primarily created by a computer software program with little human discretion or invention.

After Larrikin Music proved last year that it owned the copyright in the song “Kookaburra Sits in the Old Gum Tree” (see decision here), its claim that two Men At Work recordings of the song “Down Under” infringe Larrikin’s copyright in Kookaburra because both of those recordings reproduce a substantial part of Kookaburra (in a flute riff) has succeeded: Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited [2010] FCA 29.

After hearing evidence about the history of the Men At Work recordings and expert evidence on the musical notes in both songs, Judge Jacobson concluded that Down Under reproduced a substantial part of Kookaburra.

However the judge also commented that “I would emphasise that the findings I have made do not amount to a finding that the flute riff is a substantial part of Down Under or that it is the “hook” of that song.”

Damages are to be assessed.

The case also considered whether two Qantas advertisements which contain an orchestral version of a part of Down Under breached Kookaburra’s copyright: the judge concluded they did not.

UPDATE 27 February: EMI to appeal

UPDATE 6 July: Past damages assessed at 5% of royalties for the last 6 years. Reasons here.

UPDATE 1 April 2011: EMI’s appeal dismissed by Federal Court Full Court

A group of 34 applicants representing the major motion picture studios both in Australia and the United States have failed in their action against iiNet claiming that it committed an offence as an internet service provider by authorising the infringement of copyright of its users or subscribers when they downloaded cinematograph films in a manner which infringes copyright.

In Roadshow Films Pty Ltd v iiNet Limited (No. 3) [2010] FCA 24 Judge Cowdroy decided that :

1. certain iiNet users infringed copyright on a major scale

2. while iiNet had knowledge of infringements occurring, and did not act to stop them, iiNet did not authorise the infringements of copyright of the iiNet users. He reached that conclusion because iiNet’s granting internet access was not the same as giving the means of infringement by its users.

The evidence established that iiNet has done no more than to provide an internet service to its users. The judge contrasted this with the respondents in the Cooper and Kazaa proceedings, in which the respondents intended copyright infringements to occur, and in circumstances where the website and software respectively were deliberately structured to achieve this result.

He found that iiNet did have a repeat infringer policy which was reasonably implemented and that iiNet would therefore have been entitled to take advantage of the safe harbour provisions in Division 2AA of Part V of the Copyright Act if it needed to do so.

In summary the judge decided iiNet did not authorise copyright infringement ”first because the copyright infringements occurred directly as a result of the use of the BitTorrent system, not the use of the internet, and the respondent did not create and does not control the BitTorrent system; second because the respondent did not have a relevant power to prevent those infringements occurring; and third because the respondent did not sanction, approve or countenance copyright infringement. ”

UPDATE 25 February 2010: Australian Federation Against Copyright Theft says it has lodged an appeal.