The Importance of Good Plumbing for Collaborative Research and

How Telephone Books Shaped Your Data’s

The Questions I Was Asked To Consider Answering… Should all data have a licence? YES, particularly if you share it with others. When should I apply a licence? At the latest, when you share it. But if that’s the first time you think of it, you might be in trouble. What is the relationship between licensing and copyright? Copyright is the law that governs certain exclusive rights that you have as the creator of your data. Licensing allows you to manage those rights when you give your data to others. Is Creative Commons always the right choice? No, not always, but generally, yes!

I’m working on a “collaborative” research data project… What do I do about licensing?

Collaboration and Open Research Data Be like a plumber - Start the licensing discussion early with your partners/colleagues… Its never too early. Be prepared to invest some time and effort. Consider not only what will be achieved with the data, but what could be achieved with the data. Answer the question – What rights will the people using the data have once the data is generated? Settle on a single open licence – AusGOAL recommends Creative Commons Attribution 4.0 International. If obtaining data from participants, think about the uses of the data beyond the immediate research. Inform them that the data may have uses beyond the immediate research. Consider the prospect of recycling your data and make plans accordingly. Publish the data openly.

Is there copyright in my research data?

Feist Publications Inc. v Rural Telephone Service Co United States Supreme Court Rural Telephone was required by Government to produce a telephone directory in return for its monopoly status providing telephone services to certain region within Kansas. It copied directly from its subscriber database, and compiled it into a directory in alphabetical order. Feist copied the directory contents. Rural Telephone alleged copyright infringement in Feist’s copying. HELD: HELD: Not infringement. US Law did not recognise copyright in a mere compilation of facts. No ‘selection’ or ‘spark of creativity’.

Desktop Marketing Systems Pty Ltd v Telstra Corp Ltd Full Court of the Federal Court of Australia Facts similar to Feist - This time creation of a searchable CD-ROM Chief Justice Black stated: “The considerations relied on by Desktop may thus point against the existence of a "spark of creativity", but once that test of originality is rejected the question is whether a particular form of labour is determinative in attracting copyright protection. The reasons in Feist provide no ground for concluding that Telstra's various forms of labour (collecting/receiving, verifying, recording, computer-aided assembling) should not suffice to attract copyright protection.” Justice Sackville noted: “Copyright will subsist if there has been sufficient intellectual effort in the selection or arrangement of the facts. It will also subsist if the author has engaged in sufficient work or incurred sufficient expense in gathering the facts...”

Justice Lindgren stated: “The question for decision by us is whether the word "original" in s 32 of the Act requires the intellectual effort or creative spark on which Feist insists. In my opinion, the course of Anglo-Australian authority recounted earlier shows that it does not.” HELD: HELD: Copying is an infringement. Copyright subsists in a compilation of facts, here, the Whitepages. ‘Sweat of the Brow’ favouring Telstra test prevails and becomes part of Australian law for the next decade.. question of fact and degree Where copyright subsists in a factual compilation on the basis of the labour or expense required to collect the information, the compiler must show that the labour or expense exceeds a minimum threshold, but this is a question of fact and degree. Desktop Marketing Systems Pty Ltd v Telstra Corp Ltd

IceTV Pty Limited v Nine Network Australia Pty Ltd High Court of Australia Was the copying of programme name and timeslot information from Nines programme guide an infringement? Was it a substantial use? HELD: HELD: Not an infringement. Must look qualitatively and quantitatively at the portion(s) copied to determine substantial use. HOWEVER: HOWEVER: The Court in obiter stated: “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 and, to the contrary of Desktop Marketing, affirm that there must be "creative spark" or exercise of "skill and judgment" before a work is sufficiently "original" for the subsistence of copyright. 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.”

– Federal Court of Australia, and on appeal the Full Federal Court, ultimately refused special leave by the High Court. The Internet had come of age. Phonebooks had become Internet based service businesses. Following Desktop Marketing Telstra invested heavily in online directories. Creating Sensis, Yellow Pages Online, White Pages Online, True-Local and other derivatives of the telephone directories with additional features. They also invested heavily in the Genesis computer system to composite the directories. The judge examined the way Genesis was used to develop the directories in minute detail. Was the reproduction of telephone books by Phone Directories an infringement of Telstra’s Copyright? HELD: HELD: Not an infringement. The WPD and YPD are constructed by computers. Need to find human authors “that select, arrange, and present that data in the form it is published, to secure copyright protection.” “If you want a database right, that needs to be legislated”. Appealed to the Full Federal Court. HELD: Not an infringement. Appeal Dismissed. Special leave application to appeal to the High Court. HELD: Special Leave Refused Telstra Corp Limited v Phone Directories Company Pty Ltd.

So, where does this leave us? Whether copyright subsists in a dataset will be a question of fact and degree and will need to be examined on a case by case basis. Certain indicia of the kind considered by Justice Gordon will be instructive. If the data is a compilation of machine generated records, its highly unlikely that copyright will subsist. However, if a human exercises skill in the selection and arrangement, or changes the data, then copyright may subsist. Publicly funded (research) data should be open (research) data, unless there is some overwhelming reason to the contrary. AusGOAL recommends that any one of the following be applied to publicly funded open research data: The Creative Commons Public Domain Mark A “no known rights” Statement A Creative Commons Attribution 4.0 International Licence. Do you have a litigation budget / copyright compliance component built into your research grant? Limitation of liability clauses are still important DO NOT CREATE BESPOKE OPEN LICENCES (TO COVER DATA IN WHICH COPYRIGHT DOES NOT SUBSIST.

Licensing Data With a Click License URL: Please give attribution to: © AusGOAL 2015AusGOAL