A new law of copyright Down Under?
Wednesday, April 22nd, 2009187. One final point should be made. This concerns the submission by the Digital Alliance that this Court consider the Full Court's decision in Desktop Marketing[196] and, to the contrary of Desktop Marketing, affirm that there must be "creative spark"[197] or exercise of "skill and judgment"[198] before a work is sufficiently "original" for the subsistence of copyright.
188. It is by no means apparent that the law even before the 1911 Act was to any different effect to that for which the Digital Alliance contends. It may be that the reasoning in Desktop Marketing with respect to compilations is out of line with the understanding of copyright law over many years. These reasons explain the need to treat with some caution the emphasis in Desktop Marketing upon "labour and expense" per se and upon misappropriation. However, in the light of the admission of Ice that the Weekly Schedule was an original literary work, this is not an appropriate occasion to take any further the subject of originality in copyright works.
(emphasis supplied)
That might come as a surprise to someone who read the transcript of Desktop's failed special leave application.