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There is a trend towards greater openness in the licensing of Australian government data. Queensland's government a few years ago put in place a framework (GILF) for Creative Commons licensing and Victoria's government recently committing to using Creative Commons as its default copyright licensing system.
Some steps have taken place at a federal level, with both the ABS and Geosciences (see their footer) moving in the same direction.
However the recent court case where Telstra sued the publishers of Local Directories over the republishing of Yellow and White pages information - and lost - marks a further step in the process.
In the case, Telstra Corporation Limited v Phone Directories Company Pty Ltd [2010] FCA 44 (8 February 2010), the judge found that Yellow and White Pages listings were not covered under copyright law as they were not original and that (requoting from the news.com.au article Telstra loses copyright case over Yellow Pages and White Pages,
"None of the people said to be authors of the Works exercised 'independent intellectual effort' or 'sufficient effort of a literary nature' in creating the (directories)."This case follows a related decision in the IceTV case in 2007, where Channel Nine claimed that its TV Guide was a literary work and IceTV could not create a copy of it through independent effort.
"Further, if necessary, the creation of the Works did not involve some 'creative spark' or the exercise of the requisite 'skill and judgment'."
So what does this mean for similar forms of government information released under Crown Copyright such as transport timetables, budget accounts, lists of elected officials, statements of interests and other lists and statistics which did not require 'creative spark', 'independent intellectual effort' or 'sufficient effort of a literary nature'?
I am not a lawyer and don't trawl all the legal cases reported online on a regular basis, however to my knowledge no Australian state or federal government department has recently gone to court against individuals or corporations replicating and reusing statistical data of these types. So there is no actual ruling I am aware of to test whether this government data remains legally protectable under Crown Copyright.
In at lease one case, involving NSW RailCorp in early 2009, cease and desist letters were sent by RailCorp's lawyers (to three iPhone application developers). This didn't end up in court as the resulting publicity brought the situation to the attention of the then NSW Premier who ordered RailCorp to negotiate arrangements to share timetable data with less stringent copyright provisions.
I believe that a reasonable supposition at this time is that where publicly released government data does not meet the required tests in the copyright case, it would be difficult to prove why it should be protected under Crown Copyright.
This would make copyright over lists of names and figures very hard to justify.
I do appreciate that government departments have concerns over information being used in inaccurate or misleading ways, or that people may rely on out-of-date information through third party sources (a particular concern for transport networks). However Crown Copyright may not be the most appropriate tool to mitigate these risks anymore.
Maybe we need to look at other approaches, such as making it easier for third parties to use data in the way intended - such as providing data feeds at consistent URLs for reuse (which means third-party applications will be as accurate as the government figures), ensuring that data labels are human readable and clear (to reduce misinterpretations) and including date stamps in data so it is clear when it is current from and to.
In cases where data is used inappropriately, government still has recourse through Creative Commons type licensing and other aspects of Australia's legal system to restrain this usage while supporting appropriate use.
Further comments and legal views by lawyers and interested parties are heartily welcome!
