Copyright protection for software and databases came into play with the advent of technology. At the start of this topic, it was mentioned that software and databases are classified as “literary works”. To understand why, it's necessary to briefly look at the definition of “literary works” under the Australian copyright law.
The definition of “literary works” includes “a table, or compilation, expressed in words, figures or symbols (whether or not in visible form) and a computer program or compilation of computer programs.” The law further defines a “computer program” as a set of instructions expressed in any language or code that causes “a device having digital information capabilities to perform a particular function.” Thus, the source code and object code of a computer program will be protected under copyright as a literary work. This gives a software developer the same rights as a creator of any other creative work.
Databases are also protected as literary works. However, court cases have imposed some additional requirements for databases and data compilations. For a database to be protected under copyright, it has to satisfy two requirements:
- the database should be created by a human author i.e. not by a machine/automated process; and
- there must be an intellectual effort involved in its creation.
These additional requirements are imposed because often data compilations consist of pure facts or information compiled in a logical order. The law considers that pure facts and information (most data) should be free for the public to use, unless there is an extra layer of creativity that goes into their compilation and organisation.
Example A database on CD
Telstra used to own copyright in their White Pages and Yellow Pages directories (remember them?). Telstra used this copyright to try and prevent another company from creating a digital telephone and address database on CD. However, Australian courts have now held that there is no copyright in Telstra’s telephone directories. A key reason is that there is insufficient intellectual effort involved in organising the data. The only logical way to organise Australians’ telephone numbers and postal addresses is alphabetically. To give one company (Telstra) a monopoly over this information simply because they were the first to compile it alphabetically would undermine the public’s interest in having free and easy access to this basic information.
