The use of software is ubiquitous in the creation of many copyright works, yet the requirement in copyright law that every work have a human author who engages in independent intellectual effort means that its use may prevent copyright subsistence. Several recent Australian cases have refocused attention on authorship as an essential criterion of copyright subsistence, and these cases suggest that much computer-produced output may be authorless and thus lack copyright protection. This article, the first in a two-part series, analyses how each case deals with the question of authorship of computer- produced works and why the use of software diminishes copyright protection for a significant number of computer-generated works. The article critiques the application of conventional notions of human authorship developed in the pre-computer age to modern productions and suggests alternative approaches to authorship that satisfy both the major objectives of copyright policy and the need to adapt to the computer age. The article argues that, without a broader judicial approach to authorship of computer-generated works, Parliament must remedy the lacuna in protection for these ‘authorless’ works. Possible solutions for reform are suggested.McCutcheon concludes
There is considerable uncertainty surrounding the status of computer-generated works, particularly which computer applications will destroy authorship. Clearly, conventional notions of authorship still strongly inform contemporary Australian copyright law, and they are difficult to reconcile with works created using computer software. This basis for impugning authorship and therefore copyright subsistence is very significant in an age when virtually every complex production and many otherwise conventional creative works will at least in part be generated or moderated through the application of computer software. If substantial computer generation prevents authorship, that fact alone will vitiate copyright in many, and perhaps most, computer-created productions.
As mentioned in the introduction, this may be inconsequential if such creations will in any event fail other copyright subsistence criteria, particularly originality. Following IceTV, this may well be the fate of many complex productions containing ‘prosaically’ arranged facts such as stock market lists or phone directories. However, and importantly, authorship will be denuded even if the computer-generated content is original, in the sense that it is not comprised of mere facts, is not copied, and, but for the computer generation, would have received copyright protection. The result is a strict and probably undesirable divide between human-authored and computer-generated works, with copyright protection for the former but none for the latter. This will also diminish international harmonisation of legal treatment, with such works receiving protection in countries that deem authorship of computer-generated works.
The dual assault on originality and authorship of complex compilations by cases such as Phone Directories and IceTV results in, or contributes to, the loss of their primary source of protection, notwithstanding the intuitive response that appropriation of that effort may be wrongful, particularly since such productions are expensive, difficult, risky and time-consuming to produce and may comprise a substantial component of an entity’s assets.
It is important that the legal protection keeps step with the sophistication of modern production methods for complex works. Through the aid of software and technology, we have left behind the days of relatively simple compilations created by individual authors. If these modern complex works had been created by the physical effort of single authors, then, provided they are original, they would generally be protected. Introduce software and more efficient collection, arrangement and production methods, and copyright protection vanishes.
The lacuna in protection has arisen essentially because of the superimposition of a conventional notion of individuated authorship on material productions that don’t fit that construct. That concept of authorship has remained steadfastly physically based on single authorship, while productions have steadily become digital and multi-authored. The copyright outcome is that producers have become victims of the authorless technology used to produce these works, technology that was ironically developed through the application of the ‘independent skill and effort’ of humans.
The tendency to concede issues of authorship and subsistence (as occurred in Desktop and IceTV) suggests that there was an understanding that the judicial process should admit the traditional author to the modern digital world. Or perhaps, like some little-known distant relative arriving at the door, no-one quite knew where to put him. There were of course rumblings that he may not belong in the digital world, but perhaps the inevitable reality that his home would be digital at least deferred closer examination of the issue, either judicially, or by Parliament. This could explain why no Australian government ever felt the need to adopt the recommendations of the CLRC and introduce an authorial deeming provision.
It is clear that any slow evolution of a judicial concept of authorship that could have assimilated computer-generated production has now been arrested. What caused the intensive scrutiny of authorship and originality by the IceTV and Phone Directories courts and the radical correction of Desktop? If Desktop was so inherently flawed, why did the High Court as then constituted refuse special leave to appeal the decision? It has been suggested that the facts of Desktop and Phone Directories are significantly different. However, the basic method of semi-automated production through manifold software, the application of defining parameters and rules, and the multiplicity of human contributors seem substantially the same.
Notably, the High Court that refused leave to appeal Desktop was differently constituted to the Court that decided IceTV. The contemporary High Court is clearly far more sympathetic to the critics of Desktop and the advocates of Feist Publications Inc v Rural Telephone Service Co Inc, the US counterpoint to Desktop. Both are motivated by the perennial fear of access to facts being wrongfully denied to legitimate users, ‘the public interest in maintaining a robust public domain in which further works are produced’, and concerns about monopoly pricing.
Of course, none of these policy concerns apply to works (complex or otherwise) with a benign effect on competition. The outmoded constructs of authorship applied and reinforced in IceTV and Phone Directories sweep up all works in their path, even when those constructs dangerously drift from the province of factual compilations to inherently original works. The resulting gap in protection should therefore be remedied by Parliament,through one or more of the methods advocated above.