In a case most similar to the landmark US case of Feist vs. Rural Telecommunications,  the Federal Court of Australia  has ruled in the case of Telstra Corporation Limited v Phone Directories Company Pty Ltd that mere sweat-of-the-brow does not reach the minimum level  of creativity required to create copyright in compilations of facts. As with Feist in the United States, OCLC’s copyright claims on the Worldcat database  would not seem to survive  in Australia under this decision.

Commercial value not relevant in deciding whether copyright exists

(20)(8) … Copyright is not given to reward work distinct from the production of a particular form of expression: IceTV [2009] HCA 14; 254 ALR 386 at [28] and [31]. Accordingly, it is “unhelpful to refer to the ‘commercial value’ of the information, because that directs attention to the information itself rather than to the particular form of expression”: IceTV [2009] HCA 14; 254 ALR 386 at [31] and [166].

Application of rules, no matter how skillfully is not enough to obtain copyright

Section (C) (6) seems especially applicable to some mistaken claims of copyright in bibliographic records;  as in Batlin v. Snyder, <<the requirement of originality [cannot]  be satisfied simply by the demonstration of “physical skill” or “special training”>>

(162) As the evidence shows, the person or persons who utilise the Rules and who, therefore, are submitted by the Applicants to be authors of the Works, do not exercise either “independent intellectual effort” or “sufficient effort of a literary nature” to be considered an author within the meaning of the Copyright Act.

(163) First, it is the Rules that prescribe the particular form of expression of the Works, not any individual person alone or in collaboration with others. The Rules control the content of each Work. The various computer systems generate and control the choice of the content on the basis of the Rules and are responsible for ensuring the vast majority of their valid application. In some circumstances the Rules expressly prohibit certain content.

(164) Secondly, even where there is any level of human “discretion”, it must be exercised in accordance with the Rules. There is no independent effort, let alone such effort being intellectual. There is no effort, let alone sufficient effort, of a literary nature. I reject the Applicants’ contention that there is judgment or discretion used in selecting the material for inclusion. The Rules prescribe, presume and prohibit the actions of the contributors. What choice there is, is the choice given by the Rules, not by any person or persons.

(165)Thirdly, even if the judgment or discretion of the kind asserted by the Applicants was “independent intellectual effort”, it is not relevant intellectual effort. I reject the Applicants’ contention that the relevant intellectual effort involved is in understanding and applying the Rules. The “independent intellectual effort” required must be directed to the creation of the Work: IceTV [2009] HCA 14; 254 ALR 386 at [33]. Such skill and judgment, on the facts, is not directed to the creation of each Work but to the application of the Rules. Moreover, the “work” undertaken by many of the Sensis workers, is work directed (at least in part) to the maintenance and operation of the Genesis Computer System and associated computer systems (including the Genesis database) which is accessed or used for a multitude of applications.

(166) Finally, even if it mattered, there is insufficient evidence about who created the Rules themselves. The Rules alone cannot be said to be an author for the purposes of the Copyright Act.

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