Australian YP Telstra Fighting As Legal Underdog Down Under

by Chris Silver Smith

TelstraThe Aussie yellow pages company, Telstra, is continuing to fight hard to protect their claim that yellow pages business directories can be copyrighted.

Judges found last year that directories were no longer covered by copyright because their creation and maintenance was computerized.

Copyright of phonebook directory information has always been on shaky ground, since facts themselves generally cannot be copyrighted. In the U.S. in the past the argument has been that the index arrangement of the directory information or the process to generate the directory could be copyrighted. Alternatively, it was also possible to patent metadata elements used in conjunction with the directory, such as a unique taxonomy. But, as Greg Sterling has outlined, directory listings lost copyright status in 1991.

Even so, major internet yellow pages companies considered their directories to be a prime intellectual property asset, and have worked hard to protect them for quite some time, using various methods. For instance, obtaining exclusive new data update agreements from the telcos so that their data would always be fresher, and thus superior to anyone else’s.

They also have some protections in place against data miners which send bots to scrape out and steal their data. There have been times when IYPs and data aggregators have constructed webpages to purposefully make the harvesting of data out of them more difficult. I remember a time when one major aggregator insisted that phone numbers not be displayed on listings results pages, but could only be accessed via an additional click — a requirement which Google Maps’ ease-of-use rapidly killed for any site which desired to remain even marginally competitive.

One legal trick which has been used some in the past was to hide some false business listings among the real ones — the idea being that if a data scraper stole your content you would then have proof positive that they’d taken your information if any of those faux listings could be shown to be in their directories.

While I don’t at all know the ideosyncracies of Australian law, I don’t really like the concept that the directories are not protected, merely because their building and maintenance are now computerized. I would think that basis is rather faulty, since it’s the end product itself which should be protected by copyright. Are they really saying that if Telstra thew away their database and went back to using paper files or index cards to build the index, it would then still be protected?

The U.S. directories were likely undermined mainly by the concept that the facts of a business’s name, address, and phone number (or “NAP” as some local online marketers like to refer to it) are not inherently owned by anyone. A publication of a collection of those facts is also difficult to then prove as unique. If you have a comprehensive list of all business’s in a particular city, that’s also factual — how can you prove whether someone else developed an identical list by their own methods or if they simply copied them from your list?

On the yellow pages directories’ side, there is significant cost and investment involved in developing and maintaining those lists of businesses. Much of the base data is purchased from third-parties. Buying and processing of telco feed updates and deletes is a substantially labor/processing-intensive activitiy. Likewise, the processing of area code and ZIP code updates for regions, and absorbing bulk feed updates from national chainstores and from individual proprietors — all of these things are arguments in favor of allowing directory companies to protect their data.

It’s not quite fair that data scrapers can swoop in and harvest this data, and then turn around and repurpose it without any payment to the companies they take it from. They may republish it on a variety of other sites and applications, competing directly against the companies they’ve ripped-off. And, consumers may not be able to detect any difference in quality. Only some percentage of companies go out of business each year, or change addresses and phone numbers — so, these scraper sites can ignore daily/weekly/monthly updating and maintenance activities before their quality will detectably degrade in consumers’ eyes.

It used to be that the prime owner of business contact information was the phone company, which also produced the official local yellow pages. However, the breakup of the phone company monopoly and pressure from those who desired to create competitive directories resulted in more and more people having access to the data.

This is a case where the information wants to be free. There seems to be a general feeling among internet technologists that company IP is not the data itself, but the creative things done in presenting it and utilities provided for using it. The Testra fight appears to be another tickmark in the progression timeline as local data becomes freed. If things continue in this direction, local business data will not be owned by directories any longer.

As directories are struggling with costs, and there may be some collapse in the number of yellow pages companies on the horizon, these companies should collaborate to create an open local database of places/businesses for universal use, somewhat similarly to how the airline industry initially joined together to create for their common good.

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