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Australian Judge Rules Facts Cannot Be Copyrighted 234

Posted by timothy
from the same-time-same-channel dept.
nfarrell writes "Last week, an Australian Judge ruled that copyright laws do not apply to collections of facts, regardless of the amount of effort that was spent collecting them. In this case, the case surrounded the reproduction of entries from the White and Yellow Pages, but the ruling referred to a previous case involving IceTV, which republishes TV guides. Does this mean that other databases of facts, such as financial data, are also legally able to be copied and redistributed?" Here are analyses from a former legal adviser to the directory publisher which prevailed as the defendant in this case, and from Smart Company.
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Australian Judge Rules Facts Cannot Be Copyrighted

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  • by Kirijini (214824) <kirijini@yahoo . c om> on Sunday February 14, 2010 @05:39AM (#31133372)

    This has been settled law in the United States since the Supreme Court ruling in Feist Publications, Inc., v. Rural Telephone Service Co. [wikipedia.org] (1991). You can read the whole opinion on Google Scholar [google.com]. I highly recommend reading it, it's a classic in American copyright law.

    • Re: (Score:3, Insightful)

      by Anonymous Coward

      Interesting. So the publication of facts is uncopyrightable.

      If I really wanted to go to extremes, could I demand that documentaries, photographs, or other representations of "facts" as being uncopyrightable as well?

      I'm really just confused as to what extent we can classify things as facts or not facts.

      • by Trepidity (597) <delirium-slashdo ... g ['ish' in gap]> on Sunday February 14, 2010 @05:56AM (#31133428)

        Particular representations of facts, like documentaries or photographs, can be copyrighted. It's the underlying facts that can't be, so you can't stop someone else from publishing the same facts in a way that doesn't use any of your creative presentation of them. In Feist, the court held that there wasn't any creative presentation at all, because listing all people in an area code in alphabetical order was just the bare facts, with no presentation that rose to the level of something copyrightable. If they had done something creative, they could copyright that part, but anyone could still extract and republish the names and phone numbers, because that bare list isn't copyrightable.

        • by Trepidity (597) <delirium-slashdo ... g ['ish' in gap]> on Sunday February 14, 2010 @06:00AM (#31133444)

          To give a not-yet-litigated example of what I think would be the 3d analogy: A 3d model exactly capturing the surface of the Washington Monument is not copyrightable, because it's mere facts. However, particular photographs or films of the Washington Monument are copyrightable, as they have creative presentation. However (again), someone who collected a bunch of photographs or films of it and extracted a 3d model [washington.edu] of the Washington Monument from them, would not be violating the copyright on the photographs or films, because they were merely copying the facts (the 3d spatial position of the stones).

          • by mwvdlee (775178)

            How about a rendering of the 3D model?

            • Re: (Score:3, Informative)

              by tepples (727027)
              My understanding is that an original rendering with an original arrangement of lights on the (uncopyrightable) 3D model would be copyrightable, at least in the United States.
            • by erroneus (253617)

              I think one part of the test should include the probability that two independent parties doing the same work ending up with the exact same result should determine whether or not something should be a creative work.

              Would two parties doing the exact same work come up with two [substantially] different models of the Washington monument? I doubt it.

              If this test were applied, I think it becomes increasingly more obvious as to what is a creative work and what is not.

              • Re: (Score:3, Insightful)

                by digitalunity (19107)

                If such a test were implemented for software patents I would be a happy camper. There are so many software patents that are merely digital adaptations of things invented long ago, or mere incremental progression from existing software that I just don't think they should be patentable.

                Only true innovation should be patentable, software or otherwise.

          • by ookabooka (731013)

            Which begs the question: Why hasn't the US gov trademarked the Washington Monument?

            Did I use "begs the question" appropriately here?

            • by Bill Currie (487)

              No, you did not. The phrase you want is "raises the question". (No, I don't know the correct usage, though I've seen it posted a few times)

              • Re: (Score:3, Informative)

                by Trepidity (597)

                In philosophy and logic, question-begging is basically a fancy term for circular argument: using the thing you want to prove, or something equivalent to it, as part of your argument for that same thing.

                Oddly that "correct" usage is itself actually somewhat of a corruption. Aristotle considered circular argument different from question-beginning, and defined question-begging as asking your opponent in a debate to conceded a point that was equivalent to the point being debate. They're somewhat related concept

                • Re: (Score:3, Informative)

                  by mpeskett (1221084)

                  So circular argument would be "X therefore X" whereas begging the question would be "Do we all agree that X? Well then Y" where X = Y, but phrased differently. Either way you're taking the conclusion of your argument as a premise; the difference is in whether you're stating it as your premise or asking an opponent to agree with it as a premise.

                  If your goal is just to show that your opponent agrees with you, begging the question could be a valid argument - if the question you've 'begged' and the conclusion

            • For the same reason NASA pics are not copyrighted: They already belong to "the people". Please don't take it away from us, it's not like we were allowed to keep much else that we enjoyed as "our" right.

          • by jklovanc (1603149) on Sunday February 14, 2010 @07:33AM (#31133738)

            I disagree. The fact that the Washington monument 555 feet and 5 1/8 inches tall is not copyrightable but a 3-D model may be. The model must have some form of coordinate system. It must have some sort or relationship between the coordinates. It must have some indication of what is solid and what is not. This is much more than simple facts.

            If it was not copyrightable then there would be no way to recoup the cost of creating 3-D models of buildings. Think of how much it would cost to 3D model New York City.

            • by Trepidity (597) <delirium-slashdo ... g ['ish' in gap]> on Sunday February 14, 2010 @07:49AM (#31133782)

              If it was not copyrightable then there would be no way to recoup the cost of creating 3-D models of buildings. Think of how much it would cost to 3D model New York City.

              Isn't that essentially the "sweat of the brow" [wikipedia.org] argument U.S. copyright law explicitly rejected? The mere fact that it takes a lot of effort to compile some facts doesn't make them copyrightable.

              (And in any case, it actually isn't very expensive to crowdsource a 3d model of a whole city [washington.edu].)

              • Re: (Score:3, Informative)

                by jklovanc (1603149)

                You missed a key point of the the rejection;
                "The arrangement and presentation of a collection may be original, but not if it is "simple and obvious" such as a list in alphabetical or chronological order."
                The arrangement of 3D data is neither "simple" nor "obvious" for the reasons I already stated. If you disagree ask an average adult to create a 3D model of a building.

                • Re: (Score:3, Insightful)

                  by Jah-Wren Ryel (80510)

                  The arrangement of 3D data is neither "simple" nor "obvious" for the reasons I already stated. If you disagree ask an average adult to create a 3D model of a building.

                  An exact model would contain no creative component. Especially considering that said arrangement of 3D data is going to be in some standardized format which is the 3D equivalent of alphabetizing a list of names.

                  • Re: (Score:2, Interesting)

                    by naam00 (1145163)
                    There is no standardized format for 3D models. Sure there are some oft-used formats for transport between different applications, but in those, even the fact that the model is built up out of verteces and triangles is somewhat of an artistic choice -- the modeller could have chosen NURBs. And even after that choice, the way in which he decides to distribute the polygons or NURBs can be wholly different from another modeller. As such there doesn't exist any way to build an exact 3D model of anything.

                    Any m
                    • by Zerth (26112)

                      One x,y,z point per planck^3 with a probability of it being occupied?

                    • There is no standardized format for 3D models.

                      Sure there is - each application has its own format. There is no creativity involved in using the format that your application uses.

                    • Re: (Score:3, Interesting)

                      by Khyber (864651)

                      "There is no standardized format for 3D models."

                      Yes there is - it's called 'drafting.' Maybe there is no standardized format for computer representations, but EVERY SINGLE PROGRAM relies upon the same basic principles that originated from paper and pencil drafting/architectural design.

                    • Re: (Score:3, Interesting)

                      by Trepidity (597)

                      A score of a public-domain piece of music indeed isn't independently copyrightable unless it were scored in some creative fashion.

                      (I'm talking here about 3d models of things that are themselves in the public domain; a 3d model of a sculpture where the sculpture itself is still under copyright would not be public domain.)

                  • Well I think it's still a little unclear, since there are not a finite set of data points for a 3D model. Therefore you can't have an *exact* model, and the creation of any model might include some particular choices about which data points to include.

                    I'm not a lawyer, so I really don't know how that plays out.

                • by wvmarle (1070040)

                  But for the question whether the model is copyrightable or not (I would argue it is; while a e.g. list of telephone numbers or the results of sports events I would agree is not),to get any useful answer you will have to ask a judge. Or at least a lawyer specialised in the field.

                  I think you have good chance for making it copyrightable because it is a separate work though based on an actual building (photographs of it are also copyrightable). You may even violate the copyright (if any such exist) on the very

            • by nine-times (778537) <nine.times@gmail.com> on Sunday February 14, 2010 @11:32AM (#31134622) Homepage

              If it was not copyrightable then there would be no way to recoup the cost of creating 3-D models of buildings.

              Right, I think people are forgetting about the part in the Constitution where it says, "The Congress shall make laws ensuring that all business expenses are recoupable in full." IIRC it comes right before, "The Congress shall construct laws to ensure that current business models remain protected from innovation," and "The Congress shall bail out any large companies which are failing."

              I mean, we can't let any big businesses fail to be profitable, right? That'd be bad for the economy.

            • by butlerm (3112)

              A 3D model of a building, as such, is of course copyrightable. However, the facts within the 3D model, to the degree that they are facts, are not. The same issue applies to maps. Maps are copyrightable. The facts represented by the map, however, to the degree, and only to the degree, that they are facts are not protectable by copyright, no matter how much effort was engaged in collecting them.

              So ironically, the more accurate a model or a map is, the greater the content of true facts (rather than selective

          • To give a not-yet-litigated example of what I think would be the 3d analogy: A 3d model exactly capturing the surface of the Washington Monument is not copyrightable, because it's mere facts. However, particular photographs or films of the Washington Monument are copyrightable, as they have creative presentation. However (again), someone who collected a bunch of photographs or films of it and extracted a 3d model [washington.edu] of the Washington Monument from them, would not be violating the copyright on the photographs or films, because they were merely copying the facts (the 3d spatial position of the stones).

            That's an interesting question - would the result be a derivative work and hence subject to the original's copyright? Each photo provides the photographer's view and distorts the actual relationship by the very act of capturing in 2d a 3d object.

            I'm not saying that should be the case; but it could be.

            Any real IP lawyers care to chime in?

          • Our law concerning derivative art makes it dependent on your "creative input" whether the use is permitted or whether it's plagiarism. The use of someone else's 3d mesh is not permitted, unless you can somehow show that you used it as the foundation of something bigger where the used 3d mesh was altered and added to in such a meaningful way that you created a new piece of art.

            That's how collage art is permitted, since the (probably copyrighted) pieces used are only used to create something larger. The same,

          • What makes me wonder about this is the fact that many museums stop visitors from taking photographs of exhibits because they state they maintain a copyright of everything in the museum. For example I visited Paul Allen's 'Experience the Music Project' in Seattle and wanted to photograph a 100+ year old guitar (without using a flash). The security guard came over and told me I couldn't because that would be copyright infringement, and he would have to throw me out. I thought WTF? How do you copyright the ref
        • by dimeglio (456244)

          They might be able to get away with just publishing is at a work of fiction and stating that all references to real or actual people represented in the book are purely coincidental. But that might not work well for a phone book.

        • by Artifakt (700173)

          For example, if somebody published a phonebook that color coded different businesses by how long they had been in the area, that particular system of color coding would be copyrightable. Anyone could still print a table that had the names, phone numbers, and number of years in the area, using black and white, or make up a system where different fonts or type sizes or italics conveyed the same information.
          What's not clear from such decisions is what happens when the 'creative' portion i

    • How about databases? (Score:3, Interesting)

      by golodh (893453)
      As the parent poster notes, this ruling from down-under agrees with US legal theory on this issue. But what about databases?

      For example ... Lexis-Nexus? And big chemical databases (see http://en.wikipedia.org/wiki/Chemical_database [wikipedia.org]) like the Beilstein database (see http://en.wikipedia.org/wiki/Beilstein_database [wikipedia.org])?

      On the one hand I'm very glad that mere facts aren't patentable, but on the other hand if this means that anyone can slurp down your entire database and then resell it or even export it then it

      • by MrHanky (141717)

        One particular collection of facts, the fixture lists of English Premier League games, is copyrighted in the UK [wikipedia.org] but uncopyrightable in the EU under the database directive. The legal status of databases here depends on where 'here' is.

        • by mspohr (589790)
          What is a "fixture list"? It sounds like a list of hardware used to hold the ball or the sinks and toilets in the mens room (WC). Sorry, I'm not British.
          • by phyrz (669413)

            4 : a settled date or time especially for a sporting or festive event; also : such an event especially as a regularly scheduled affair

            Study the language dood.

            • Re: (Score:3, Funny)

              by mspohr (589790)

              Study the language dood.

              What is this "language dood" that I should study? Google just says "Did you mean "Language Door"?

          • by vlm (69642)

            What is a "fixture list"?

            Its more or less the thing that EA updates in its video games each year to get sports fans to pay another $50+

            It sounds like a list of hardware used to hold the ball or the sinks and toilets in the mens room (WC).

            Unlike a fixture list, that could actual add real value, if you're trying to replace a specific broken part with a compatible aftermarket part.

            Sorry, I'm not British.

            And for everyone else, there's google.

      • by kill-1 (36256)

        I don't know about the US but in Germany and I think the rest of the EU, the "sweat of the brow" rule applies to databases.

        • Re: (Score:3, Insightful)

          by Anne Thwacks (531696)
          I don't know about the US but in Germany and I think the rest of the EU, the "sweat of the brow" rule applies to databases.

          As an SQL programmer, I can vouch for "sweat of the brow" personally. Is there a ruling that DB4 code is worth more than SQL because of the extra amount of grief that went into debugging it?

      • by pdabbadabba (720526) on Sunday February 14, 2010 @12:18PM (#31134930) Homepage

        Bear in mind that even if copyright law provides no protection to databases, a database owner can still choose to only allow you access to their database under a license that prohibits you from reselling the information (and I believe many large database owners do just this). So, what you can't enforce through copyright law you probably could enforce through contract law.

        (I am a law student, not a lawyer)

    • by erroneus (253617)

      Indeed. I was thinking more along the lines of the cases surrounding the collection and use of baseball statistics and TV guides, but yeah. And it makes perfect sense.

      If it's a creative work, then someone doing the exact same research could put together something similar and come up with something completely different. In the case of non-creative works, if someone did the exact same research they would come up with identical data. This is why facts should not and cannot be copyrightable. They are not cr

  • I suppose google are now free to feed the yellow and white pages through the google books scanner. They can have my copy. I'm not using it. And I will be glad not to have to use the Sensis's own White Pages web interface [whitepages.com.au]

    • I'm wondering if this means we can reverse-lookup telephone numbers again (The Gray Pages or something to that effect)? We haven't been able to do that for a few years now but if someone wants to suck all the information in and distribute a DVD...
    • by rtb61 (674572)

      In Australia they would now be free to gain the data from the white pages (you likely could transcribe the data and rekey, maybe even scan and OCR it for reproduction) but not to copy the yellow pages but they again likely can extract the data and reproduce that (yellow pages contains artwork, in the form of advertisements and the would be copyrightable ).

      Non-fiction text books are a better example, whilst you are free to extract the facts and rewrite them in your own words you cannot copy the original c

  • What about... (Score:3, Interesting)

    by concernedadmin (1054160) on Sunday February 14, 2010 @05:40AM (#31133378)

    ... facts interspersed with opinions? Is there partial copyright in effect with only the opinion parts falling under copyright law?

    • by wvmarle (1070040)

      I think no question there as many works of art mention certain facts, or direct references to those facts. Assuming the facts are there to support the opinion, the work as a whole can be copyrighted.

      That however would not prevent someone from taking the facts out of it and republish it. For example you may be able to copyright a telephone book, however everyone can take the telephone book, copy the facts, and republish in their own format. They can just not put the book on the copier and create their own c

    • The facts themselves aren't subject to copyright, but the work as a whole is.

      So for example, a newspaper can pull facts out of another newspaper and then write their own story based on (and including) those facts. However, they cannot simply re-run the original story without permission. I believe that they can quote the original article in a reasonable way, like pulling out a couple lines from the original article, but they can't quote the whole article.

      Ultimately it's not about what's "fact" and what's

      • by butlerm (3112)

        So for example, a newspaper can pull facts out of another newspaper and then write their own story based on (and including) those facts.

        In the United States, there is a common law "hot news" doctrine [digitalmed...erblog.com] which may prevent a newspaper from doing just that.

  • US Law (Score:3, Informative)

    by Toonol (1057698) on Sunday February 14, 2010 @05:40AM (#31133380)
    May be worth noting that "collections of fact" have long been recognized as uncopyrightable in the US. However, if significant creative work went into filtering the facts in a certain way.. like I picked out all the funny-sounding names from the phone book... the resulting list may be copyrighted.
  • So, facts cannot be copyrighted. Good. That would be a sily road to go down. If companies want to be able to restrict access beyond copyright, they should stop trying to freeload off the government and make people sign contracts.

    If that is not profitable, well then tough. Some things aren't.

  • this Aussie judge.

    We should have Outback Steakhouse ship him to the U.S. in their next shipment and let him trim down our insane Disney-sponsored copyright laws.
    • Judges interpret the law. Going by some other US posters here the US may be ahead of Australia in this area. I hear sometimes about US Judges being strongly identified with their political background. While this can happen in Australia I don't believe it is as widespread.

    • The copyright industry is already way ahead of you. They have decided that this man should be shown as an example in courts around the world. There are a lot of courts, so they had to cut him up pretty small, but in a way, that only makes the example more clear.

      Evil, it is a lot easier when you realize you have no soul.

  • Interesting that the summary mentions IceTV but fails to mention the exact same problem that DMS had with Telstra over their phonedisc product.

    If someone would like to do some serious reading to find out why DMS lost but PDC won that might actually be useful.

  • IANAL, but if you ask me the time and name of the program is a fact. The description/synapsis/call it what you will, is not. So I guess it's OK to publish the asctual schedule of a channel, or scrape the channel's official guide. But I'm sure that scraping a publication's TV-guide and basically copying it is more of copyright infringement and less of publishing facts.

    This does bring up an interesting issue. Pharmaceutical companies are apparently applying patents for genes these days. Aren't the DNA base se

    • > This does bring up an interesting issue. Pharmaceutical companies are
      > apparently applying patents for genes these days. Aren't the DNA base
      > sequences of any gene a fact if anything?

      Yes, and therefor, despite what the newsies say, it is not actually the genes that are patented.

    • by Sowelu (713889)
      Patents are not the same as copyrights.
  • by Sique (173459) on Sunday February 14, 2010 @07:19AM (#31133696) Homepage

    In Germany and other EU countries there is special wording in the Author's Right (Urheberrecht) to protect databases even if the single entry in the database is not protected. So while in Germany facts are not protected by the Author's Right, databases of facts are.

    Interestingly though since the addition of databases to the Author's Right in the 90ies the market share of EU based companies for databases has dwindled. This is probably pure coincidence.

  • by Sneeze1066 (1574313) on Sunday February 14, 2010 @07:46AM (#31133770)
    ...was that fact? Just want to clarify before I download it.
    • Of course a movie you download is a collection of facts. Basically, the file format states that "The first frame of the movie looks like this: [image]. The second frame of the movie differs from the first in the following ways: [list]. The third frame of the movie..."

      Well, I'm off to download some collections of facts about a few movies, songs, and books.

  • a different set of laws. Your bank doesn't keep your account details private because of copyright law.

  • I'd say this ruling is just following common sense. If you gather data that is already available, and put them in a database, that in itself should not be copyrightable. If you make some data representation from those, like charts, tables, or draw some conclusions that are not obvious, those should be copyrightable, since those are results of your own work. Nobody should be allowed to retain any rigths over anything that is just another pile of the same heap.

    There was also a comment about hey, now we can
    • But previously you would have to go out and do a survey yourself to make a map if the data is under copyright. Now your can use another map to get that data as long as you plot the data yourself. So it will be a great help for people wanting to make a map.

  • In other discussions about databases being copyrightable in EU, I think it is foolish to allow databases to be copyrighted simply because of the amount of work and/or investment involved in the collection of data. There is a slippery slope to observe in the case of this sort of reasoning.

    I have created a set of card faces for Gnome solitaire that features the characters of Southpark. I literally spent hours and hours vectorizing these characters where no such vector forms of characters could be found on t

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