Five-year Telstra copyright fight destroys content provider

A small Australian service provider has been forced into liquidation following a five-year court battle with Telstra over copyright.

Andre Scibor-Kaminski, MD at Victoria-based Desktop Marketing Systems (DtMS), said his company, which had provided directory and direct marketing content on CD-ROM to businesses for 11 years, could no longer afford to defend itself in the courts against allegations initially brought by Telstra in 1999.

DtMS formally entered liquidation on 15 July. Formerly a successful firm with 25 staff, it now numbers Scibor-Kaminski and three casuals, who are helping him pack up what's left.

“It's wrong, and I've said that all along. But it seems my voice can't be heard,” Scibor-Kaminski said.

Scibor-Kaminski's company compiled data based on Yellow Pages and White Pages listings, together with added information such as State by State location, fax numbers, Ausdoc numbers and industry classification codes.

Federal Court documents reveal Telstra had alleged that, by using the information in its directories, DtMS had infringed Telstra's copyright.

“It was very cleverly done. It was all done within the law,” Scibor-Kaminski said. “In the CD-ROM business, there were three of us. One died in 1997, one was shot down at Christmas, and we were the last one standing. [Telstra] has wiped the field of any competition whatsoever.”

Justice Finkelstein handed down a judgement in favour of Telstra in the Federal Court of Australia in May 2001, ruling that DtMS's CD Phone Directory, Phonedisk and Marketing Pro products substantively copied Telstra's Yellow Pages and White Pages.

However, Scibor-Kaminski said that the information was copied, rather than the directories themselves. It was generally held that information itself could not be copyright, only the form of that information, he said.

“Our claim was that there's no copyright on a bunch of facts. The judge had a very balanced view of it, but was bound by [another] precedent,” he said.

Karina White, a corporate affairs spokesperson for Telstra's Sensis, said that three courts had found DtMS guilty of copyright infringement. “Our intention is to protect the hard work and hours that have been put into developing [our] directories and also to protect the privacy of people listed in the directory,” White said.

Scibor-Kaminski and DtMS had appealed the decision several times in various Australian courts, but to no avail, he said.

“The impact of this will be felt in the marketplace in about six months time, because market researchers will no longer have access to information. Law enforcement people will be paying Telstra $5.50 a search, instead of $100 for a CD-ROM.

“It's scary. The government will have to find more money to help out all the government agencies, to pay Telstra more, and to make Sensis into a very profitable company,” he said.

Police forces in most States, including anti-fraud and vice squads, anti-corruption and tactical response units, and government agencies such as Customs, the Department of Defence, Immigration, Foreign Affairs and Trade, and Telstra itself, needed to run critical searches on a regular basis about individuals and companies, he said.

“There is no privacy issue, as all of the materials within the CD-ROM are publicly available,” Scibor-Kaminski said.

If information itself became protected by copyright laws, not only would the public's right to information be curtailed, but the cost of obtaining and using information – where that was still possible -- would skyrocket, he pointed out.

“My understanding is that Customs uses the CD-ROMs to run up to 120,000 searches a month,' Scibor-Kaminski said. “In future, a police officer checking a list of telephone numbers as part of a criminal investigation will no longer be able to do this from the desk.”

However, Sensis' White said there was nothing in the case to stop people from going out and developing their own directories.

Also, DtMS was selling specialised search information – as marketing databases -- to the general public that was previously only available to particular government agencies, such as police, she said.

“But by the time it got out ... the information [DtMS provided] was out of date,” White said. “We update it daily.”

Scibor-Kaminski had finally won a meeting with the former Minister of Communications, Daryl Williams. This also had netted no results, as had a letter to Leader of the Opposition Mark Latham, he said.

“The meeting was a waste of time, with Mr Williams saying he would not intervene. I got the impression he was keen on returning to private life,” he said.

DtMS has been ordered to pay Telstra's legal costs, but full final orders have yet to be made pending a final hearing in September. Scibor-Kaminski can no longer afford to be present for that hearing.

“I wouldn't be able to fund that, so my part is done. It'd take another $60,000 to $100,000. They'll have to make their judgement without me. And, really, they've made their minds up already,” Scibor-Kaminski said.