by Michael Crawford

On March 18^th 2010, the CMCL and IPRIA jointly hosted a conference entitled Authorship, Anthems and Authorisation: a legal and economic review of the copyright triptych.  The conference was convened in order to discuss three very significant and recently decided cases; Telstra Corporation Limited v Phone Directories Company Pty Ltd [2010] FCA 44 , Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited [2010] FCA 29 and Roadshow Films Pty Ltd v iiNet  Limited (No. 3) [2010] FCA 24.  See our post here for a summary of the cases.

The panel, chaired by Jock Given, consisted of David Brennan of the Melbourne Law School, Melissa de Zwart of the University of South Australia, David Lindsay of Monash University, Beth Webster of IPRIA and Philip Williams of Frontier Economics.

1. Authorship – Telstra case

The decision in Telstra v PDC, a recent judgment of Gordon J of the Federal Court, was discussed in considerable detail by David Lindsay.  In Telstra v PDC, Gordon J applied both plurality judgments in IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14 in concluding that no copyright subsisted in Telstra telephone directories on the grounds that they were not original literary works.

Dr Lindsay discussed, amongst others, two elements of the case.  The first was her Honour’s reliance on IceTV.  Dr Lindsay commented that, as a matter of basic legal method, Gordon J ought not to have considered the comments in IceTV concerning subsistence as binding law.  This is because, as subsistence was conceded by the defendant in that case, the comments were purely obiter dicta.  That is, the comments were incidental to the holding of the case.

The second and more substantive criticism concerned Gordon J’s insistence that subsistence under Part III of the Copyright Act 1968 requires the plaintiff to identify each author who has contributed to the work in suit.  Telstra’s inability to do this meant that it could not establish copyright in the directories.  Dr Lindsay argued that by insisting on authorial identification as a prerequisite for subsistence, her honour erroneously imposed an additional hurdle not required by Part III of the Copyright Act, which requires only that the work be original.  Dr Lindsay concluded that, to the extent that both Telstra v PDC and IceTV impose this additional obligation of authorial identification, they represent a serious departure from accepted understandings of subsistence under Part III and are wrong. 

Philip Williams also spoke about the decision in Telstra v PDC, in particular about the need for the introduction of a new legal regime for the protection of commercially valuable collections of information that are expensive to compile and, since the decisions in Telstra v PDC and IceTV, not protected by copyright.  However, Dr Williams also cautioned that the creation of any such regime will require considerable care because of the need to protect the beneficial uses to which such information is put by third parties.  The example given was the rise of web-sites which, in response to a particular search query, trawl through on-line auction sites and provide users with a list of the lowest priced items and their locations.  The challenge is thus to create a regime that is flexible enough to permit innovative and desirable third-party uses of database-type information whilst also guaranteeing a level of protection that provides a commercial incentive for organisations to engage in the costly and time-consuming process of compiling a database.

2. Anthems – “Down Under” case

The widely publicised decision of the Federal Court in Larrikin Music v EMI Songs Australia was discussed by Melissa de Zwart.  Dr de Zwart’s pithy summary of the very complex expert evidence provided by the musicologists was most enlightening to those of us who found the discussion in the case impenetrable.  Moreover, her expertise with Power Point enabled a direct aural comparison between Kookaburra and the infringing flute riff from Down Under.  The audience was then asked if they could detect the apparently objective similarity.  Opinion was relatively evenly divided, though perhaps a majority claimed they could hear the similarity.  In any case, that there was a substantial minority who could not hear the resemblance suggests either that the Court did not abide by the “ordinary reasonably experienced listener test” or that lawyers are particularly tone deaf.  One suspects the latter.

3. Authorisation – iiNET case

The final case in the trio was Roadshow Films Pty v iiNet, a case concerning the authorisation liability of internet service providers (ISP’s) whose customers illegally download copyright works using the “BitTorrent” software and the applicability of the ISP safe harbour provisions introduced into the Copyright Act as part of the AUSFTA.

Both issues were thoroughly discussed by David Brennan, who gave a concise summary of the enormous judgment.  Dr Brennan’s critique of both the Court’s legal analysis of authorisation liability and iiNet’s apparently lackadaisical approach to those of its customers who routinely infringed copyright casts doubt over whether the courts are adequately enforcing the bargain which was struck with ISPs, as represented in the changes wrought by the Copyright Amendment (Digital Agenda) Act 2000 and the safe harbour provisions under the AUSFTA.

The final speaker of the day was Beth Webster from IPRIA, whose discussion of the fundamental economic policy goals underlying copyright law complimented the predominately legal analysis of the preceding speakers.  The lively debate which followed Dr Webster’s address showed that the audience enjoyed the opportunity to discuss whether or not the present copyright regime efficiently achieves the economic and social ends it was established to serve.

Congratulations are to go to the CMCL, IPRIA, Jock Given for chairing and, of course, the panellists whose expertise and engaging presentations made for a most entertaining and informative day.