Gordon J, sitting at first instance, has ruled that copyright does not subsist in Telstra’s White Pages directories or Yellow Pages directories confirming the revolution wrought by IceTV.

There are 347 paragraphs and time does not permit careful analysis at this stage. According to the summary in [5]:

For the reasons that follow, copyright does not subsist in any Work. None is an original literary work. By way of summary:
  1. among the many contributors to each Work, the Applicants have not and cannot identify who provided the necessary authorial contribution to each Work. The Applicants concede there are numerous non-identified persons who “contributed” to each Work (including third party sources);
  2. even if the human or humans who “contributed” to each Work were capable of being identified (and they are not), much of the contribution to each Work:
2.1 was not “independent intellectual effort” (IceTV [2009] HCA 14; 254 ALR 386 at [33]) and further or alternatively, “sufficient effort of a literary nature” (IceTV [2009] HCA 14; 254 ALR 386 at [99]) for those who made a contribution to be considered an author of the Work within the meaning of the Copyright Act;
2.2 further or alternatively, was anterior to the Work first taking its “material form” (IceTV [2009] HCA 14; 254 ALR 386 at [102]);
2.3 was not the result of human authorship but was computer generated;
the Works cannot be considered as “original works” because the creation of each Work did not involve “independent intellectual effort” (IceTV [2009] HCA 14; 254 ALR 386 at [33]) and / or the exercise of “sufficient effort of a literary nature”: IceTV [2009] HCA 14; 254 ALR 386 at [99]; see also IceTV [2009] HCA 14; 254 ALR 386 at [187]- [188].

It may be particularly interesting to see why copyright did not subsist in the Yellow Pages directories, which were classified directories.

At [46], her Honour explained why Desktop Marketing no longer represented the law in Australia following IceTV (here and here):

Before turning to the facts, mention must be made of the decision of the Full Court of the Federal Court in Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd [2002] FCAFC 112; (2002) 119 FCR 491 (Desktop Marketing). In that decision, copyright was found to subsist in certain editions of WPDs and YPDs. The Applicants submitted that the resolution of the present case remains governed by the outcome in Desktop Marketing [2002] FCAFC 112; 119 FCR 491 and that the High Court’s comments on copyright subsistence in IceTV [2009] HCA 14; 254 ALR 386 should be regarded as obiter dicta. I reject that contention. Firstly, IceTV [2009] HCA 14; 254 ALR 386 is binding authority on the proper interpretation of the Copyright Act. The reasoning of both plurality judgments establishes principles of law beyond copyright infringement. Secondly, the High Court directly warned of the need to treat Desktop Marketing 119 FCR 491 with particular care: see IceTV [2009] HCA 14; 254 ALR 386 at [52], [134], [157] and [188]. Thirdly, Desktop Marketing [2002] FCAFC 112; 119 FCR 491 did not deal directly with the issue of authorship. Rather, all issues in respect of copyright had been conceded other than that of originality. In fact, Finkelstein J (at first instance) questioned the assumptions the parties had made about authorship: Telstra Corporation Ltd v Desktop Marketing Systems Pty Ltd [2001] FCA 612; (2001) 51 IPR 257 at [4]. Finally, the facts of this case are significantly different. The WPDs and YPDs in question are different. Moreover, the Genesis Computer System which stored the relational database and which was used in the production of some of the WPDs and YPDs in issue in these proceedings (after September 2001 in the case of YPDs and late 2003 in the case of WPDs) was not in use in Desktop Marketing [2002] FCAFC 112; 119 FCR 491. (The Genesis Computer System is considered in detail at [60]ff below).

Telstra Corporation Limited v Phone Directories Company Pty Ltd [2010] FCA 44