Mallesons’ Melbourne Intellectual Property team recently acted for Telstra in its successful application to intervene in the High Court appeal between Channel 9 and Ice TV. As an articled clerk in the Intellectual Property team, I attended court (sitting in Canberra) and assisted with Telstra’s preparation (for all the fun and excitement that was had, click here and here.
The decision to intervene came in the wake of some interesting comments from Justice Gummow in the Special Leave application concerning the Australian law of copyright in compilations (which include telephone directories). In preparation the Mallesons team had to get across all of the 19th and 20th century English and Australian decisions on the subsistence and infringement of copyright in compilations. We then set off to Canberra with 50 folders of materials, ready to respond to any cases/articles which Gummow J might rely on. We were most concerned with how the High Court would deal with the American decision of Feist Publications Inc v Rural Telephone Service C 499 U.S. 340 (1991), which found that copyright did not subsist in phone directories in the US.
Unfortunately, we missed out on having Justice Kirby sit on the matter, in what would have been one of his final judicial appearances. However, the remaining six justices did not disappoint. The first issue to be determined was whether Telstra (and others) would be granted leave to intervene. The Mallesons team decided that we should all attempt to not look visibly upset should their Honours not want to hear from us. After being granted leave to intervene (much to our delight), the following two days for me involved trying to catch every word that fell from Justice Gummow’s lips to ensure that we had already read/had every case or article that he mentioned, however obscure.
Throughout the hearing it struck me that the bench seemed to be truly enjoying themselves, maybe because of the vast number of advocates before them, or simply because they were faced with the opportunity to write a seminal copyright judgment. The new Chief Justice took on the role of the voice of reason. His Honour queried the advocates occasionally with “So what you are saying is…”, and each time managed to distil the key principles from their lengthy submissions into two short sentences. Justice Gummow seemed more interested in the theoretical aspects of the argument, whilst Justices Crennan, Hayne and Heydon’s focus fell on the evidentiary aspects of the matter.
At the close of the two day hearing it was not clear how the High Court would rule, yet it was apparent that they are not going to shy away from a landmark decision. Anyone with an interest in compilations should watch this space.
