Apex court: Use of rival's directories not a copyright breach

The apex court comprises Chief Justice Sundaresh Menon (pictured), Judges of Appeal Chao Hick Tin, Andrew Phang, Judith Prakash and Tay Yong Kwang.
The apex court comprises Chief Justice Sundaresh Menon (pictured), Judges of Appeal Chao Hick Tin, Andrew Phang, Judith Prakash and Tay Yong Kwang.PHOTO: ST FILE

Global Yellow Pages (GYP), which sued rival Promedia Directories for alleged copying of its online directories, has failed in its appeal before the top court, which made it clear that such data is not "copyrightable material".

The five-judge Court of Appeal ruled that, for copyright to apply in the case of such data, there had to be an author who used a certain amount of " creativity" in " selecting or arranging the material within the compilation".

"If the compiler does so, the resulting copyright will only protect the original expression in the form of the selection or arrangement of the material as the case may be," wrote Chief Justice Sundaresh Menon on the court's behalf in judgment grounds released last Wednesday.

The case, involving two publishers of phone directories, has drawn keen industry interest for its impact on other directory publishers.

GYP alleged that Promedia, which publishes the Green Book, copied from four of its directories from 2003 to 2009. The four are three printed directories - the Business Listings, the Yellow Pages Business and the Yellow Pages Consumer - and the online Internet Yellow Pages.

Last year, the High Court dismissed GYP' s entire claim of copyright infringement and allowed Promedia's counter-claim against GYP for making groundless threats of copyright infringement.

GYP then appealed to the apex court - comprising CJ Menon, Judges of Appeal Chao Hick Tin, Andrew Phang, Judith Prakash and Tay Yong Kwang - which heard the appeal in November last year and reserved judgment.

GYP was represented by lawyers Bryan Ghows and Wang Yingyu, while Promedia was defended by lawyers G. Radakrishnan, Mark Teng and Gillian Tan.

The court said that none of the Green Book directories infringes any copyright in GYP's directories.

"All Promedia took was the data in GYP's directories," it said.

Promedia collected data from multiple third-party sources, including field surveys, company websites and phone calls, but the telephone directories of competing publishers were the most significant source, noted the court.

The result was a series of Green Book directories that were " vastly different from GYP's corresponding directories", added the court.

The court acknowledged that the case "threw the spotlight on how the law is to deal with 'free-riding', or the appropriation of data or facts that represent the fruit of an investment". It accepted that the data in the case was "a valuable commodity for which GYP had paid a substantial amount".

The court agreed with Singapore Management University law professor David Llewelyn, who was appointed amicus curiae (Latin for friend of the court) to give an independent view as a third party.

He said that, even if "one might frown upon commercial immorality underlying such conduct", this is simply not within the purview of copyright law.

CJ Menon said this had more to do with database rights, which are not recognised here, but he noted that protection may be achieved through the law of contract, as suggested by Professor Llewelyn.

A version of this article appeared in the print edition of The Straits Times on April 24, 2017, with the headline 'Apex court: Use of rival's directories not a copyright breach'. Print Edition | Subscribe