The introduction of tablets, smart phones and other mobile devices is driving down the use of personal computers and printers and making life tough for businesses who service these peripherals. For two rival distributors of printer cartridges the increased competition in a declining market has made it all the way to the Federal Court in a case involving a copyright breach when one of the distributors made use of material from its competitor’s website.

The two companies involved are Dynamic Supplies and Tonnex International, which faced off in the Federal Court over the issue of copyright and misleading and deceptive conduct.

The copyright issue that the Federal Court was asked to resolve related to a printer cartridge compatibility chart that was published on Dynamic Supplies website.

The chart was derived from a database that Dynamic Supplies had maintained since 2007 and which it called the ‘Navision database’. The database stored data on each of the cartridge products Dynamic Supplies manufactured and sold. In 2008, one of the companies employees, a Mr Mark Campbell, extracted part of this data and uploaded it into a printer cartridge compatibility chart that described information that was relevant to customers and set out the information in nine columns each of which contained information about what printer cartridges could be used with what particular printers. The columns related to product codes, equipment manufacturer codes, descriptions of the product, ink, covers, production, production categories and, where available, images of the product, all of which was then published on Dynamic’s website.

At this point, Tonnex, created its own compatibility chart by making use of aspects of the Dynamic Supplies chart.

When the issue was decided in the Federal Court, it rested on the question as to whether copyright can subsist in a compatibility chart that was merely a compilation of information that was publicly known. This meant that the court had to determine whether the chart possessed the degree of originality necessary to attract copyright.

When the court found that the compatibility table was subject to copyright it confirmed a number of general principals about this issue the first of which was that original works emanate from authors and the test for originality is whether the work originated from the author in the sense that it was not copied by the author.

It is also a general principle of copyright that the work must be the product of someone’s human intellectual endeavour and not just mere facts, ideas or information contained in a compilation. Also, copyright protects a particular form of expression that is the compilation itself and, finally, a compilation may be bought into existence by the efforts of more than one individual.

In the dispute between Tonnex and Dynamic, Mr Campbell created the chart by undertaking a review of the information contained on the company’s database with a view to improving how that information was stored. At that time additional information was incorporated. The changes also involved ordering the information in a different way.

The judge found that there was intellectual effort brought to bear by Mr Campbell as the author in making the selections that he did and that these selections were informed by a personal assessment of what information might be valuable to customers searching a website; and MR Campbell’s selection of information was also informed by his appreciation of the utility to customers that would be achieved by expressing the information in a particular form.

The compatibility chart was not found to be ‘merely an observation or prosaic arrangement of information dictate essentially by the nature of that information’. In this case there is nothing in the product descriptions or compatibility information that required the information to be expressed in a particular form. The choice of form was generated by the intellect of Mr Campbell.

The case made clear that originality, for copyright purposes, is a matter of degree depending on the amount of skill or labour that was involved in making the compilation. The judge was satisfied that the author, in creating the compatibility chart in the form that he did, contributed originality that was more than negligible and that the work was, therefore, an original literary work for copyright purposes.

Once it was found that copyright existed, finding the breach was easy because of the frequent and direct copying of work and the relevant information.

On the second issue, Dynamic alleged that Tonnex had engaged in false and misleading conduct because, it had claimed on its website, that all of its products were ‘100% genuine original equipment manufacturer’. Dynamic argued that Tonnex sourced its products from unauthorised distributors and could, therefore, not be sure that those products were not counterfeits.

Duly, the judge involved found that Tonnex did not have a system in place to check the authenticity of its products and remarked that it was not enough to believe a supplier was genuine through the simple commercial experience of having dealt regularly with that supplier. This meant that Tonnex could not be reasonably certain that all its products were genuine and, therefore, had, in fact, engaged in misleading or deceptive conduct.

The lesson to be learnt from this case is that documents that appear to collate publicly available information may still be covered by copyright and use of that information without the consent of the copyright owner could have serious commercial ramifications. Ramifications which will only make commercial life more difficult in a market where overcrowding and technological change also bring competitive pressures of their own.