Ron B. Thomson <thomson[_at_]chass.utoronto.ca> wrote:
>
snip......
> Second, don't let people tell you that US court ruling concerning
> data-bases (the so-called Feist rules) apply and that directories are
> not protected by copyright. In Canada they are protected by copyright
> and copying them is an infringement for which Canadian courts will
> give remedy.
Prof. Thomson (who wears several hats on behalf of publishers) appears to be anticipating that someone might actually suggest that the contents of telephone directories and other similar information are not protected by copyright in Canada.
In fact, the Federal Court of Canada has essentially and explicitly so held in the very important judgment in Tele-Direct (Publications) Inc. v. American Business Information, Inc., on June 28, 1996. The result -- which denies copyright protection to the "vast majority" of the raw information or the compilation thereof contained in "Yellow Pages" (i.e. Tele-Direct) telephone directories -- accords with the result of the Feist and post-Feist cases in the USA, although for somewhat different reasons. I understand that the decision has been appealed. The case was argued by very well-known and highly experienced counsel on both sides. Here is an extract of the judgment of Mme Justice Donna McGillis:
[para54] In conclusion, Tele-Direct arranged its
information, the vast majority of which is not subject to
copyright, according to accepted, commonplace standards of
selection in the industry. In doing so, it exercised only a
minimal degree of skill, judgment or labour in its overall
arrangement which is insufficient to support a claim of
originality in the compilation so as to warrant copyright
protection. In my opinion, the defendant has successfully
displaced the presumption in favour of copyright created by
paragraph 34(3)(a) of the Act.
[para55] During the course of argument, counsel for the defendant advanced extensive arguments concerning the applicability of the American decision Feist Publications Inc. v. Rural Telephone Service Company Inc. (1991), 111 S.C.T. 1282, in which copyright protection was denied to white page directories on the basis that they lacked the requisite degree of originality. He also sought to rely on Bellsouth Advertising & Publishing Corp. v. Donnelley Information Publishing Inc. (1993), 999 F (2d) 1436 (U.S.C.A., 11th cir.), in which it was held that the taking of information from yellow page directories is not an infringement of copyright. Counsel for the plaintiff submitted that the American jurisprudence ought not to be applied in Canada for various reasons. Since I have concluded, on the basis of the law as it presently exists in Canada, that Tele-Direct does not have copyright in its compilation of the information in its directories, it is unnecessary for me to decide the interesting question of whether the American approach ought to be followed in Canada.
iii) infringement by ABI
[para56] Given my conclusion that Tele-Direct has no copyright in its compilation of the information in its directories, it is unnecessary for me to consider the infringement issue. However, even if I were to assume that Tele-Direct has a subsisting copyright in its compilation of the information in its directories, I have nevertheless concluded that there is no infringement on the basis that there is no substantial similarity between the works in question.
--
Howard Knopf
Perley-Robertson, Panet, Hill & McDougall
90 Sparks St.
Ottawa, Canada
Phone: 613-566-2820 or
1-800-2-OTTAWA
E-Mail: knopfh[_at_]perlaw.ca,hknopf[_at_]magmacom.com
WebSite: http://www.perlaw.ca
Received on Tue May 06 1997 - 00:26:54 GMT
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