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Ottawa, 3 March 1992
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Telecom Decision CRTC 92-1
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BELL CANADA - DIRECTORY FILE SERVICE
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I BACKGROUND
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In Bell Canada - Provision of Telephone Directory Data Base Information in Machine-Readable Form, Telecom Decision CRTC 90-12, 14 June 1990 (Decision 90-12), the Commission directed Bell Canada (Bell) to file proposed general tariff pages providing for the offering, in machine-readable form, of non-confidential non-residential subscriber listing information and ongoing updates to that information. In addition, the Commission directed Bell to file a report (1) describing, element by element, the non-residential listing information contained in its data bases, and (2) providing, for each element of information other than name, address, and listed telephone number, any reasons why it should not be made available pursuant to a general tariff.
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On 30 July 1990, Bell filed a report setting out the 68 individual data elements in its Bell Canada Record Information System data file, which it provides to its affiliate Tele- Direct (Publications) Inc. (Tele- Direct). Bell proposed to make the following data elements available: (1) the directory listing text, (2) address/location number, provided that it appears in the directory, (3) address/location type, provided that it appears in the directory, (4) postal code (whose accuracy Bell would not guarantee), (5) house number, (6) street name, (7) community name, (8) seven-digit telephone number, (9) exchange name abbreviation, and (10) business or government indicator.
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Bell proposed that the remaining 58 elements not be made available. Bell cited various reasons for not offering these elements, including concerns related to confidentiality.
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On 13 August 1990, Bell filed Tariff Notice 3641 requesting approval of the introduction of Directory File Service, under which Bell would offer, on a magnetic medium, a data base file containing ten elements and covering all of its operating territory. Bell also proposed to make updates available under terms requiring that the customer purchase updates for three consecutive months. With its application, Bell filed a copy of a licensing agreement setting out further terms and conditions applicable to the proposed service, including restrictions on the resale of the Directory File and on the ability of the licensee to publicize the existence of the agreement with Bell.
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On 6 September 1990, the Commission issued Bell Canada - Directory File Service, CRTC Telecom Public Notice 1990-82 (Public Notice 1990-82), inviting comment on Bell's application and on the report. Comments were received from the following: Director of Investigation and Research, Bureau of Competition Policy, Consumer and Corporate Affairs Canada (the Director); Dialadex Communications Inc. (Dialadex); Namic Publishing Inc. (Locator); Government of Ontario (Ontario); and Unitel Communications Inc. (Unitel).
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II POSITIONS OF PARTIES
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A. The Licensing Agreement and Copyright Issues
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The Director submitted that the information in question is not the property of Bell and that, in order to recognize the fact that Bell has no copyright in it, the agreement should be characterized as a service agreement and not as a licensing agreement. In addition, the Director stated that provisions requiring Bell's written consent prior to a licensee advertising or publicizing the existence of the agreement should be amended to provide that consent would not be unreasonably withheld.
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Bell submitted that the master and update files containing listing information are computer compilations constituting original literary works under the Copyright Act. Thus, title to the entire work rests with Bell. Bell submitted that the terms of its licensing agreement are in keeping with the basic principles of copyright law and are not unduly restrictive. In particular, Bell submitted that its proposed wording with respect to consent is appropriate. The company stated that, in order to determine whether a particular publicity representation is acceptable, it would be necessary to examine both the product and the proposed representation. Bell submitted that its proposed wording indicates that the request for consent is more than a mere formality.
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B. Data Elements
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As indicated above, Bell proposed to make ten data elements available. Bell advanced various reasons for not releasing other data elements, including, among other things, that the information in question is customer-specific and confidential, market sensitive, or related to billing. Bell also submitted that some of the data elements had been developed by Tele-Direct (such as classifications and headings), and that the latter should not be obliged to provide them to a competitor.
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The Director submitted that, at a minimum, Canadian directory publishers require the following information in order to compete with a directory operation affiliated with a telephone company: (1) name, (2) address, (3) listed telephone number, (4) primary business classification, including standard industry classification (SIC) code, professional designation or Yellow Pages classification, and (5) billing name and address.
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Dialadex submitted that Bell should be required to provide uniform classification of business (UCB) codes and that the Directory File is virtually worthless without them. Dialadex stated that Bell is in error in submitting that Tele-Direct developed the UCB classifications. Dialadex maintained that these codes were widely used by Bell prior to the creation of Tele-Direct and that it is likely that these codes originated with American Telegraph and Telephone Company.
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In reply, Bell stated that it does not use SIC codes and makes no provision for this information in its customer record. It noted that the "primary business classification, professional designation or Yellow Pages classification" requested by the Director is comparable to its standard regular listing (SRL) data element. Bell also stated that, since 1971, Tele-Direct has had sole responsibility for the management, creation and deletion of headings in the heading list from which UCB codes are derived.
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Bell submitted that the customer's billing name and address should not be disclosed. Bell argued that each publisher should obtain such information directly from the customer, thus ensuring the customer's consent for the use of the information.
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The Director, Dialadex, and Locator commented on Bell's proposal to provide only the complete Directory File, covering all of its operating territory. Dialadex submitted that it is unreasonable to require that a complete list be purchased and that a firm should be able to purchase only that portion of the Directory File that it requires.
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Bell replied that it does not classify or segregate the information by geographic division and that any classification or segregation is done by Tele-Direct.
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C.Rates and Related Issues
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Bell did not file an economic study in support of the new service, but rather based proposed rates largely on available knowledge of American market prices. Bell stated that it does not have the time or the information to undertake a detailed market and cost analysis and that it has been unable to estimate demand for the service.
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Unitel, Ontario and the Director commented on the absence of an economic evaluation. Ontario stated that, without such a study, the impact of the service on local rates could not be addressed. The Director stated that the reliance on market prices in the United States is misleading, because buyers in the United States have no alternative source of supply.
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The Director, Dialadex and Locator questioned the reasonableness of the proposed rate structure. The Director stated that the price for the updates is too high, given that the purchaser might be obliged to obtain more than required. Dialadex and Locator noted that business listings can be purchased from other sources at a fraction of the costs proposed. Dialadex suggested that the Commission adopt a rating scheme similar to that used by Dun's Marketing Service or by Canadian Business Information (CBI), and included a pricing model for consideration.
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Bell replied that Dun's Canadian Key Business Directory and CBI's product are neither complete nor up-to-date in comparison to the proposed Directory File. Bell stated that both the systems involved and the work required are complex. Bell submitted that, in the United States, rates range from $80 to $500 U.S. per thousand listings for the basic offering, and from $220 to $2500 U.S. per thousand listings for updates. Bell argued that its respective rates of $250 and $1500 compare favourably.The Director noted that provisions in the licensing agreement require that monthly updates be purchased for three consecutive months. The Director submitted that updates should be made available on a spot basis, as well as weekly, monthly and quarterly. The Director argued that this would allow for greater flexibility than Bell's proposed update contract.
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Bell argued that it will be required to make a substantial investment to provide and maintain updates for the minimum contract period and that, as demand for the service has not been determined, the request to increase the frequency of updates is not yet warranted.
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III CONCLUSIONS
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In the Commission's view, copyright could attach to a compilation of basic non-confidential listing information as a result of the sorting, arrangement or classification of that information. However, in the Commission's opinion, basic non-confidential listing information cannot attract a claim of copyright in and of itself. Thus, while it may be possible to claim copyright for a directory, either in hard copy or in electronic form, the raw listing information contained in the directory is not subject to being copyrighted.
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The Commission's intent in Decision 90-12 was to make available basic non-confidential, non-residential listing information so that, among other things, other suppliers could assemble their own directories. The Commission considers that the objectives set out in Decision 90-12 will be best realized if Bell makes available basic non-confidential listing information, in machine- readable form, free of any particular sorting, arrangement or classification that could render the end product subject to copyright.
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The Commission agrees with the Director, Locator and Dialadex that the provision of information by geographical area would be useful. However, as discussed above, listing information that has been sorted, segregated and extracted according to specific criteria, such as geographic area, could be regarded as a compilation, thus attracting a claim of copyright.
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As noted above, the Director and Dialadex submitted that Bell should be required to disclose primary business classification (including the SIC or UCB code, professional designation or Yellow Pages classification). Bell stated that it does not use SIC codes in its database, but rather uses comparable UCB and\or SRL codes. In the Commission's view, the UCB and SRL codes are likely subject to copyright. Accordingly, Bell need not include them among the data elements provided under Directory File.
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With respect to the other data elements that Bell proposes to make available, the Commission notes that address/location number, address/location type and postal code, although not always set out in the telephone directory, can be regarded as part of the customer's address. Similarly, the database element identified as directory listing text (which contains such information as the title "Dr.") can be regarded as part of the customer's name. The Commission therefore agrees with Bell's provision of these elements.
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In addition, the Commission is of the view that the abbreviated name of the exchange serving the listed telephone number and the business or government indicator should be disclosed, since the information contained in these elements is either already in the public domain or readily obtainable from the telephone directory.
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The Director and Dialadex contended that Bell should also make available the customer's billing name and address. The company records this information in order to identify the person within an organization who is billed for telephone service. The Commission agrees with Bell that this information is properly regarded as confidential under Article 11 of Bell's Terms of Service. Accordingly, such information should not be disclosed without the customer's consent.
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In light of the foregoing, the Commission considers it appropriate that Bell make available, on a magnetic medium, the following information:
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(1) the customer's name as listed in the directory,
(2) the customer's address as listed in the directory,
(3) postal code as provided by the customer,
(4) listed seven-digit telephone number,
(5) the abbreviated name of the exchange serving the listed telephone number, and
(6) an indicator specifying whether the listing is business or government.
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The Commission considers that the above-noted raw information, free of any sort or classification, is not subject to a claim of copyright. Therefore, while some of the provisions in Bell's proposed licensing agreement might be appropriately included in the company's tariffs or in a service agreement, the Commission considers a licensing agreement to be neither necessary nor appropriate for this service. In addition, the Commission considers any provisions asserting property in the listing information itself on prohibiting its resale to be inappropriate.
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The Commission finds Bell's approach to the provision of updates to be reasonable at this time. The Commission also finds Bell's proposed rates of $250 per thousand listings of basic offering and of $1500 per thousand listings of updates acceptable at this time.
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Subject to the above, the Commission approves Directory File Service. Bell is directed to file, by 2 April 1992, revised proposed tariff pages giving effect to the above and specifying an effective date of 31 July 1992.
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In view of the absence of an economic evaluation, the Commission directs Bell to track demand and expenses for Directory File Service and report back to the Commission by (one year from the filing date of the proposed tariff pages).
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Allan J. Darling
Secretary General
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