and it certainly looks like House of Commons was right to warn database owners to be very afraid.
Gummow J opened with a bouncer to Counsel for Nine Network, the respondent, pointing out that the House of Lords in Ladbroke v William Hill overruled Lord Diplock who was then sitting as Diplock LJ in the Court of Appeal. Followed up with:
GUMMOW J: What I am putting to you is that do not think that in this Court William Hill is the end of a rainbow.
Then:
GUMMOW J: There is real question of what this notion of originality means in this “electronic age”, is there not?
Gummow J went on to describe Cramp v Smythson from the 1940s as the “elephant in the room” and then
GUMMOW J: I suppose what I am putting to you is, maybe some of the considerations that underpin the approach in Feist conceivably could underpin an approach to the notion of substantiality at the later stage in our law.
although his Honour did indicate that Counsel’s rejection of the relevance of Feist under our Act “may well be right”. Nonetheless:
GUMMOW J: There will be a grant of a special leave in this matter. The Court will allow one and a half to two days, I think, and we expect to have the assistance of counsel to deal with this matter thoroughly without any reticence in starting at the bottom, so to speak, and we expect counsel to be familiar with the academic writing in this field. They have already been referred, I think, to an article by Dr Deazley in [2004] Intellectual Property Quarterly 121. There is also what may be a useful article by Professor Sterk in Michigan Law Review for 1996, Volume 94, pp 1197 called Rhetoric and Reality in Copyright Law. There is a lot of other material out there as well. I hope the arguments will be informed with all of that, at least in a suitable background.
We’ll have to wait a bit longer to see what the actual questions are.
