Court ruling adds pressure to rethink copyright

This article first appeared in The Independent on 11 June 2009.

A recent decision from Australia's highest court could force a fundamental review of Australia's copyright regime. It also has downstream consequences for our own law, given the Government's commitment to trans-Tasman harmonisation and the high level of integration between both economies.

At issue is the legal protection provided to databases. Around the world and at home, companies have spent billions on databases that inform business directories and online telephone books. The information services firm Bloomberg makes about US$5 billion a year packaging and selling data to the finance sector.

While there is big money in aggregating information and flogging it to others, the business model depends on the ability to restrict access to compilations of fact.

Where you cannot protect against unauthorised use, free riding kills licensing revenue and undermines the incentive to compile useful data in the first place.

In New Zealand, there are two ways to protect a database. You can keep it a secret or you can reach for copyright. Where a database is confidential, trade secret law can be used to prevent unauthorised use or disclosure of the information.

When it comes to copyright, the established wisdom is that databases are protected as a form of "literary work". It sounds odd, because your average database could not be further from a Booker prize-winning novel. But our copyright law protects original expression, and for originality to be established requires only that the work was independently created (as opposed to being copied from pre-existing work), and created using skill, judgement and effort.

That has been the approach in Australia as well. But things have just changed over the ditch. In IceTV v Nine Network, the High Court signalled that Australia might be moving closer to the position of the United States and Europe.

In Europe and the US, the courts insist on some actual creativity before they accept work as being protectable by copyright. In denying copyright protection for a White Pages directory, for example, the US Supreme Court said there wasn't a sufficient "spark of creativity" to justify copyright intervention, while in Europe, databases have standalone protection under a specific database law. Now the Australians seem to be heading down the same track.

Ice publishes Australia's only commercially available electronic programme guide for television. Nine alleged Ice copied programme time, title and date-of-broadcast information from publicly available aggregated guides such as TV Week.

These guides are databases.

The case was contested and went three rounds. In the result, Australia's leading judges decided Ice had not taken enough from Nine's TV listings to infringe. In doing so, they cast doubt on whether databases could attract copyright at all.

Our courts will find the Australian analysis persuasive, which is bad news for local database owners. A best-case scenario is that both countries will adopt the European model and introduce specific legislation to protect databases, and New Zealand will use the opportunity to engage in a root and branch review of the whole copyright system.

Copyright is in desperate need of a rethink. The law has been built piecemeal since William Caxton invented the printing press in 1476. At every turn, reform has been a function of technological development and interest-group pressure.

We now have a copyright law which may not be fit for purpose: databases have inadequate protection; music, film and software is all too easily ripped off by pirates; our law on "fair dealing" with copyright works is a mess; there is the internet service provider "repeat infringer" account-termination fiasco. Then we have wedding photographers wanting to change copyright rules on commissioned work so they can extract large sums from couples seeking reprints of themselves cutting cake and smooching.

Now is the time to act. We must fix the right incentive to create and invest in original and valuable expression, while preserving a vibrant public domain. Let's rewrite copyright in a way which works for New Zealand in this century.

Matt Sumpter is a partner at Chapman Tripp. The views expressed here are his own and may or may not represent those of the firm or its clients.

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