Re: copyright under stress

On Mon, 12 Jun 2000, John Lederer <jhl[_at_]dewittross.net> wrote:
>
> How does the UK and Australia treat classic "sweat of the brow" cases
> such as directories? Don't I recall a recent WPTO position on
> databases implying that the theory of ownership by sweat is also
> recent?

The Australian position is presently being tested in the Federal Court in Melbourne with our own Feist-like decision with Telstra, the biggest Australian phone company, objecting to unlicensed reproduction of their directory. Australian case law to date suggests that sweat of the brow is probably enough to get copyright protection, although a definitive High Court decision is still awaited. If anyone is interested, I have a table of all the Australian cases I could find on compilations.

The UK position has been complicated by the implementation of the Directive on Databases. Basically, as I understand it, the standard of originality was lifted for databases (but not other copyright material) to the standard referred to in the Directive (Art 3) ie "databases which by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation". The general consensus of writers is that the intention was to make this a Feistian standard.

Given this approach of the UK, the standard of originality for databases is higher than the standard required for other copyright material but, of course, databases also get the sui generis right of extraction and re-utilization that other copyright material does not get.

If anyone has details of theWPTO position referred to above, I'd be glad to have them.

--
Mark Davison
Senior Lecturer
Faculty of Law
Monash University, 3800
Melbourne, Australia

Telephone: 61 + 3 + 99053323
Fax: 61 + 3+ 99055305
E-mail: Mark.Davison[_at_]law.monash.edu.au
http://www.law.monash.edu.au/staff/mdavison.htm