Curing the Authorless Void: Protecting Computer-Generated Works Following IceTV and Phone Directories

By McCutcheon, Jani | Melbourne University Law Review, April 2013 | Go to article overview

Curing the Authorless Void: Protecting Computer-Generated Works Following IceTV and Phone Directories


McCutcheon, Jani, Melbourne University Law Review


3 Collaboration by Joint 'Authors'

There is little judicial discussion of the criterion of collaboration. The Macquarie Dictionary defines 'collaborate' as 'to work, one with another; cooperate, as in literary work'. (129) Several English cases require collaboration and a common design to produce the work. (130) This seems sensible, otherwise it may not be clear what the putative joint authors are collaborating to achieve.

Both Phone Directories and the appeal decision suggest the collaboration criterion is unlikely to be satisfied in complex computer-generated works, without fully explaining why. At first instance, Gordon J seriously questioned (131) whether 'the gamut of individuals' working on the directory were collaborating as joint authors, and said '[t]he evidence demonstrated time and again that many of the staff perform their function separately from and often oblivious to the function of others'. (132) However, performing functions 'separately' is not necessarily inconsistent with collaboration, provided that separate work is in pursuit of a common design. (133) The requirement that the authors not be 'oblivious to the function of others' suggests that collaboration requires knowledge of what the other deemed authors are doing. The degree

of knowledge is not explained, in particular whether each author must know the detail of what the others are doing, or whether it is sufficient to know that each is working to a common design of producing the directory.

On appeal, Keane CJ agreed with Gordon J:

   The contributions of individuals discussed in her Honour's findings
   may have been precursors to the compilation of the directories but
   they were not part of the actual compilation. Moreover, the work of
   these individuals was not collaborative. It was, no doubt,
   organised to facilitate the production of the directories but this
   organisation was not collaboration of the kind contemplated by the
   definition of joint authorship, and the contribution of each of the
   groups of individuals referred to earlier was made quite
   separately. (134)

Whether arrangers (or any persons) collaborate in the creation of a computer-generated work will be a question of fact depending on the nature of the work, and the extent to which the arrangers must communicate and share knowledge of each other's functions. The sheer size and complexity of multi-authored computer-generated works may necessitate division of tasks into distinct elements overseen independently by different arrangers. On the other hand, because a multi-authored computer-generated work is an organised assembly of integers, it may also demand conferencing and direct cooperation. Indeed, it would seem impossible to effect such a complicated creation without collaboration between persons who are, in fact, arranging.

However, Keane CJ seems to discount arrangement as authorial conduct, in holding that the individual authors' organisation 'to facilitate the production of the directories ... was not collaboration of the kind contemplated by the definition of joint authorship'. (135) The reasons for this conclusion are not provided, however, the suggestion is that these contributions were too antecedent to the physical production of the directory. In any event, if organisation per se is not collaboration, then it is difficult to see how arrangement is.

4 Non-Separability of Contributions

There has also been scant judicial attention to the 'non-separability' criterion. Yates J has said '[t]he precise additional limit intended to be imposed by that requirement is not clear. ' (136) One English case suggests that non-separateness requires 'not separate interests in parts of a piece,--a joint tenancy, so to speak, in the entire work" (137) This suggests that the individual contributions should not be perceptible as such (such as separate chapters of a text). (138) However, this may also relate to the manner in which the work is undertaken. …

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