Cameron Andrews, Gilbert + Tobin
A series of recent decisions by the Federal Court of Australia has drawn attention to the lack of copyright protection for computer generated and other forms of authorless work following the reasoning of the High Court in IceTV Pty Ltd v Nine Network Pty Limited((2009) 239 CLR 45. The decisions mean that many forms of works created with a substantial degree of computer input, such as advanced forms of computer software, databases (including works derived from databases) as well as collaborative works created by numerous people interacting over computer networks, are now likely to be without copyright protection.
The IceTV decision had considered copyright in compilation literary works; specifically, a television programme schedule. Although the case had not (strictly) been about copyright subsistence, the High Court’s approach to deciding infringement had far-reaching consequences for establishing subsistence of copyright.
First, the High Court indicated that in a future case on copyright subsistence in a compilation literary work, it is likely that it would require some degree of intellectual creation to have been expended by the author, thereby rejecting the so-called “sweat of the brow” doctrine which had previously applied in Australia. That aspect of the decision brings Australia into line with other comparable jurisdictions which have also rejected sweat of the brow, for instance, the US in Feist v Rural (1991), Canada in CH Canadian v Law Society of Upper Canada (2004) and the UK following the implementation of the EU Database Directive.
Secondly, the High Court adopted an approach that places a heavy burden on copyright claimants to identify the human author of the work in suit, that is, the person or persons most closely identified with the work’s expression at the time it is rendered in material form. In the absence of provisions mirroring those in the UK’s Copyright Designs and Patents Act 1988, which provide that in the case of computer-generated work the author is “the person by whom the arrangements necessary for the creation of the work were undertaken”, the High Court noted that computer-generated work will be without copyright protection.
While a number of other similar jurisdictions have adopted the UK’s computer-generated work provisions, including New Zealand, Ireland, India, Hong Kong and South Africa, and despite an earlier recommendation by a government-appointed advisory panel to do so, there have been no similar provisions adopted in Australia.
The Federal Court decisions that have applied the High Court’s reasoning in the IceTV case have resulted in copyright protection being denied to telephone directories and also to computer-generated HTML code.
The outcome of the decision in Telstra Corp Ltd v Phone Directories Co Pty Ltd (2010) 273 ALR 725 concerning telephone directories may have been less surprising had it primarily resulted from the rejection of the “sweat of the brow” doctrine when it is considered that the doctrine is also being rejected elsewhere. However, the importance that the Court ascribed to evidence that computers had been extensively used to create the work as a factor in denying the work protection has more far-reaching consequences. It sends a strong signal about the absence of copyright protection to many other classes of computer-generated work, which might previously have been considered to be protected. In Acohs Pty Ltd v Ucorp Pty Ltd (2010) 86 IPR 492 the Court noted that it would have had no hesitation in finding that the HTML code in issue was protected if it had been written by a human being.
It is not difficult to envisage the findings extending to a wide range of other works, including software, databases, and many other works where computers and computer networks are increasingly responsible for work that might have once been undertaken by human authors.
It remains to be seen whether the government will now seek to amend the Copyright Act to bring it into line with the UK provisions, which provide protection for computer-generated work. At this stage there appears to have been no government comment on the issue.