The position in Australia is contrary to that laid out in Feist.
see: Desktop Marketing Systems Pty Ltd v Telstra Corporation Limited [2002] FCAFC 112 (15 May 2002) (available at www.austlii.edu.au)
The Federal Court - at trial and on appeal (4 judges in all) have held that the common law historically granted copyright in list cases on the basis of sweat of the brow, regardless of whether there is any "creative" element in arrangement or selection of the list. On that basis they upheld a claim for copyright in the white pages out here on the basis of the effort and expense involved in compiling them, even though it essentially locks up raw data which was arranged without any selective or creative (in the narrow sense) effort.
The case involved a claim for copyright in white pages alphabetical telephone directories (and yellow pages too) maintained by Telstra - the major telco in Oz which was once a Gov monopoly and is now half gov/half public ownership. Both the 1st instance and the appeal decisions have extensive review of the history of the common law cases in Oz and UK and some discussion of Feist. Highly instructive.
The High Court has effectively endorsed the decisions by declining to grant leave to appeal.
The curious aspect to the decisions, in my opinion, is that Telstra is obliged by statute to prepare the directories and so there is no need or scope for incentive to create them which is generally regarded as the policy reason for grant of copyright. From memory this does not get a lot of direct consideration in the judgements. However it should be noted that there is no equivalent in the Australian law to the US constitutional statement of the purposes of copyright. Indeed even the Copyright Act lacks any such broad principle pronouncement.
Simon Minahan
.........................................Barrister
This archive was generated by hypermail 2.2.0 : Mon Mar 26 2007 - 00:35:50 GMT