The recently decided case of State of Victoria v Pacific Technologies (Australia) Pty Ltd (No 2) [2009] FCA 737 (10 June 2009) is another example of the court refusing to allow copyright to be used to create monopolies in short phrases, tag lines, slogans and titles.
In the case, the Federal Court determined that copyright did not subsist in the words:
In 1995 the Victorian Government passed regulations requiring taxi owners or licence holders to fit driver duress alarm systems that displayed messages in an approved form. In 1996 the Victorian Taxi Directorate approved specifications providing that the duress alarms played the Help Words in an emergency. Pacific Technologies had previously lodged a patent application for a duress alarm that displayed a message "consisting of something such as the Help Words." Pacific Technologies therefore claimed to be the author of the Help Words and sought "a determination of reasonable remuneration for the use of the Help Words by the State of Victoria."
There was no contest on ownership; this case turned purely on whether copyright was able to subsist in the Help Words. Justice Emmett identified the following well-founded points.
- "Copyright is concerned with the protection of the expression of ideas and not with the protection of ideas as such. Literary work comprises more than mere ideas.
- A literary work may be expressed in print or writing, irrespective of the question whether the quality or style is high... However, there must be some work involved in its production of a literary work, in the sense that it is necessary for the author to add something of substance in the form of the expression of ideas... [which will] be a question of degree in any given case.
- Generally, short sentences, including titles, slogans and other short phrases have consistently been refused protection, [since they are] too insubstantial or too short to qualify as a literary work for the purposes of the Copyright Act... even though skill and labour has been expended on their creation.
- The Help Words are not a form of literary expression, but a setting down of several simple words in the nature of saying something in ordinary parlance. They are no more than a simple instruction. They are not words that should be afforded monopoly protection.
- They do no more than state an idea. [As is the case here,] when the expression of an idea is inseparable from its function it forms part of the idea and is not entitled to the protection of copyright.
- It would be inappropriate for the Help Words not to be available for use by anybody without the consent of Pacific Technologies".
His Honour found that copyright did not subsist in the Help Words on principles that closely resemble those of the recent High Court decision in IceTV Pty Limited v Nine Network Australia Pty Ltd [2009] HCA 14 (22 April 2009).
The critical takeouts of this case are that whilst copyright is an automatic right, it is not a right which will attach to all types of "literary works". Short phrases, slogans and tag lines are difficult to protect using copyright, but are best protected by trade mark registration.
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