Case: A-One Accessory Imports Pty Ltd v Off Road Imports Pty Ltd (1996) 65 FCR 478
Outcome: considered
Pakula Tackle website has the hall marks of a trade catalogue. So too does that of Zacatak. A trade catalogue can constitute an original literary work; University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601 at 608. In A One Accessory Imports Pty Ltd v Off Road Imports Pty Ltd (1996) 65 FCR 478 at 487, Drummond J stated: Copyright subsists in an "original literary work": s 32 of the Act. The expression "literary work" is defined in s 10 to include: "a table, or compilation, expressed in words, figures or symbols ... ". Trade catalogues are capable of constituting original literary works: University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601 at 608; Purefoy Engineering Co Ltd v Sykes Boxall &amp; Co Ltd (1955) 72 RPC 89 at 95. The cases repeatedly say that whether a compilation has sufficient originality to attract copyright protection depends on the degree of skill, judgment or labour which has been involved in producing it. See Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273; [1964] 1 All ER 465; Football League Ltd v Littlewoods Pools Ltd [1959] Ch 637 at 650-651; Blackie &amp; Sons Ltd v Lothian Book Publishing Co Pty Ltd [1921] HCA 27 ; (1921) 29 CLR 396 at 398-399; Real Estate Institute of New South Wales v Wood (1923) 23 SR (NSW) 349 at 352. So far as compilations that consist entirely of existing material, that is, material not created by the compiler, are concerned, Ladbroke (Football) Ltd is authority that originality may be found, and a claim of copyright may therefore subsist, by virtue of selection alone. See at 277-278; 469-470, per Lord Reid, at 286-287; 476-477 per Lord Hodson, at 289-290; 478-479 per Lord Devlin and at 292, 293; 480, 481 per Lord Pearce. In Collis v Cater, Stoffell &amp; Fortt Ltd (1898) 78 LT 613, a decision that has "never been doubted" ( Ladbroke (Football) Ltd at 290; 479) copyright was held to exist in a chemist's catalogue "although it contained `nothing whatever but a simple list' of drugs, etc with names and prices which the plaintiff kept in stock or could obtain to order": Ladbroke (Football) Ltd at 278; 470. That copyright can exist in such a mundane compilation of information readily available to all shows why the skill, judgment and labour in selecting what to include in a trade catalogue will be as relevant as the often very limited skill, judgment and labour involved in putting that selection into written form, in determining whether the compilation has sufficient "originality" to attract copyright. In considering whether a compilation that wholly consists of or that includes existing material is itself an original work, the question is whether the compilation, looked at as an entity, is original: it is not proper to dissect the work into its parts, and by determining that the individual parts lack originality, to deny originality to the whole work. This issue is dealt with fully in Ladbroke (Football) Ltd . The reason is that by s 32 of the Act, "copyright is a statutory right which ... would appear to subsist, if at all, in the literary or other work as one entity", per Lord Hodson at 285; 475. See also Ladbroke (Football) Ltd at 276-277, 290 and 291; 468-469 and 478-479. Copyright in a work will be infringed by the unauthorised reproduction of a substantial part of the work: see ss 36(1) and 14 (1) of the Act. In determining whether that has occurred, it is sometimes said that the question is whether the part taken could by itself be the subject of copyright. But as Lord Reid said at 277; 469, when both the questions whether copyright subsists in a work and, if so, whether it has been infringed are in issue: " ... that is only a shortcut, and the more correct approach is first to determine whether the plaintiffs' work as a whole is `original' and protected by copyright, and then to inquire whether the part taken by the defendant is substantial." Later in that same case, Drummond J observed (at 490): Ladbroke (Football) Ltd, Reddwood Music and Eisinger proceed on the basis that a composite work made up of pirated material and original material produced by the compiler can itself be an original work possessing copyright, even though it may also infringe the copyright in the pirated material included in it. In my opinion, a work can be an original work in which copyright will subsist, even though it is itself an infringement of the copyright in an earlier work because it is, in part, a copy of a substantial part of that copyright work. This will be the position provided the later work includes qualitatively significant changes to the copies material.