Vol 7 No 1 - Roger Williams University School of Law

eproduced, though there be no ingenuity in thearrangement or presentation of that data.Quite apart from matters of policy, it might be said thatthe very nature of copyright requires the work to be theproduct of creative thought. The first copyright statutewas enacted “for the Encouragement of learned Men tocompose and write useful Books.” These books werenecessarily the result of the author’s intellectual effort.That was also true of other works (engravings,sculptures, dramatic works and the like) that were givencopyright protection by the early statutes. But acompilation is of a different character from a work of artor literature. This is especially true of a compilation offacts that are in the public domain. For this type ofcompilation to come into existence, the facts must beselected, collected, arranged in a particular fashion, andthen produced in some form. It may be possible todescribe as creative the processes of selection, collectionor arrangement. But the creativity is of a different orderfrom that involved in producing a work of art orliterature. The English cases seem implicitly to acceptthis proposition, because the originality requirement for acompilation could not be the same as for other works.More particularly, when it was held that copyright couldsubsist in a work such as a chemist’s stock list (Collis v.Cater), the preparation of which involved no intellectualeffort, it was apparent that a work could be original inthe absence of creativity. The old view of originality haddisappeared. So, copyright protection could be claimed bya person who brought out a directory in consequence of anexpensive, complicated and well organised venture, evenif there was no creativity in the selection or arrangementof the data.That being the law in England in 1911, it became thelaw in Australia in 1912 when the English statute wasadopted as the law in this country.65The difficulty with the approach espoused by Judge Finkelstein is65. Id. at paras. 8, 9, 84-85.