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Copyright Protection of Databases

Compilations

Databases are essentially a form of compilation, and compilations have long been considered as being protected. A “compilation” is defined in the § 101 definitions section as:

[A] work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.
Note that copyright protection in a compilation focuses on the original ways in which the preexisting material or data “are selected, coordinated, or arranged,” and not the data itself. In addition, § 103 makes clear that copyright protection may extend to compilations:

Feist

The leading case on copyright protection for compilations is the 1991 Feist Publications v. Rural Telephone case. The facts of this case are as follows: Rural Telephone was a public utility providing telephone service to communities in an area of the state of Kansas. Rural was required by state regulation to compile and submit yearly updates of its telephone directory as a condition of its license. Feist was a publishing company that specialized in area-wide telephone directories. Both phone books are provided free of charge; however, both compete for yellow page advertising. Rural acquires the information easily because it does so as part of the subscription process, and as a result, it has a monopoly over such information. Not being able to acquire a license to use the information contained in the directory, Feist used them without Rurals consent.

Much of the opinion is aimed at defining the term originality as described above. Notably, the Court rejects the “sweat of the brow” doctrine. The Court makes several conclusions regarding the copyrightability of compilations. Although all facts are not copyrightable and considered a part of the public domain, the Court concludes:

Factual compilations, on the other hand, may possess the requisite originality. The compilation author typically chooses which facts to include, in what order to place them, and how to arrange the collected data so that they may be used effectively by readers. These choices as to selection and arrangement, so long as they are made independently by the compiler and entail a minimal degree of creativity, are sufficiently original that Congress may protect such compilations through the copyright laws.
The Court continues:

This protection is subject to an important limitation. The mere fact that a work is copyrighted does not mean that every element of the work may be protected. Originality remains the sine qua non of copyright; accordingly, copyright protection may extend only to those components of a work that are original to the author. Thus, if the compilation author clothes facts with an original collocation of words, he or she may be able to claim a copyright in this written expression. Others may copy the underlying facts from the publication, but not the precise words used to present them. . . . Where the compilation author adds no written expression but rather lets the facts speak for themselves, the expressive element is more elusive. The only conceivable expression is the manner in which the compiler has selected and arranged the facts. Thus, if the selection and arrangement are original, these elements of the work are eligible for copyright protection.
Accordingly, the Court makes the following comments:

This inevitably means that the copyright in a factual compilation is thin. Notwithstanding a valid copyright, a subsequent compiler remains free to use the facts contained in another’s publication to aid in preparing a competing work, so long as the competing work does not feature the same selection and arrangement. . . . It may seem unfair that much of the fruit of the compiler’s labor may be used by others without compensation. . . . [However, t]he primary objective of copyright is not to reward the labor of authors, but to promote the Progress of Science and useful Arts. To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This principle, known as the idea/expression or fact/expression dichotomy, applies to all works of authorship. As applied to a factual compilation, assuming the absence of original written expression, only the compiler’s selection and arrangement may be protected; the raw facts may be copied at will. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art.
In synthesizing §§ 101-103, the Court also identifies three distinct elements for copyright protection of compilations:

  1. The collection and assembly of pre-existing material, facts or data;
  2. The selection, coordination, or arrangement of these materials; and
  3. The creation, by virtue of the particular selection, coordination, or arrangement, of an original work of authorship.
The Court states that (1) does not seem to say much other than defining a compilation, but it is significant in that it is not the only requirement. (3) reemphasizes that compilations must be original. The key, however, is (2) because it instructs the courts that originality and copyright protection should be directed to the selection, coordination, and arrangement of the facts. The court went on to conclude, however, that despite the low standard of originality required the Rural directory did not even possess this minimal amount.

Other Developments

The 1994 2nd Circuit CCC Information v. Maclean case is interesting. In that case the issue was whether the Macleans compilation of projected used car values contained in a Red Book should be protected. CCC provided a computer database that incorporated major portions of the Redbook. As a result, CCC earned significant revenue, and customers had switched from the Redbook to CCC. The court held that CCC had infringed Macleans copyright. First, the court concluded that the minimal level of creativity required for originality was met. The court provided its reasoning why copyright protection should be extended to databases:

Compilations that devise new and useful selections and arrangements of information unquestionably contribute to public knowledge by providing cheaper, easier, and better organized access to information. Without financial incentives, creators of such useful compilations might direct their energies elsewhere, depriving the public of their creations and impeding the advance of learning. The grant of such monopoly protection to the original elements of a compilation, furthermore, imposes little cost or disadvantage to society. The facts set forth in the compilation are not protected and may be freely copied; the protection extends only to those aspects of the compilation that embody the original creation of the compiler.
In citing Kregos, the court concluded that the doctrine of merger as part of the idea/expression dichotomy is less appropriate when the ideas are infused with the authors taste or opinion. Therefore, the court seems to distinguish cases like Feist where the information contained in the compilation is building-block, raw facts or ideas (“hard facts”) from compilations containing value-added information due the authors interpretations (“soft facts”) as in CCC Information. In the latter case, protection of the compilation is more encompassing as to its content.

The CCC case was applied in the 1999 CDN v. Kapes 9th Circuit case. The court came to a similar conclusion that a compilation of wholesale prices of collectible coins was copyrightable because the author analyzed the different sources of information, excluded information thought to be unreliable or inaccurate, and extrapolated predictive prices. In 1991, the 2nd Circuit in Key Publications v. Chinatown Today held that yellow pages containing a list of Chinese businesses was copyrightable under Feist because of the selection involved, but the court concluded that no infringement occurred because of the thin protection. However, in a 1999 district court case, O.P. Solutions v. Intellectual Property Network, the court concluded that the defendant had infringed the “thin” protection provided by an arrangement of non-copyrightable elements. In the 1993 Bellsouth Advertising v. Donnelly case, the 11th Circuit declared that the yellow pages in question did not possess sufficient originality. In the 1997 Warren v. Microdos Data case, no protection for a compilation of cable television information because the selection was insufficiently creative.

What is clear from all of these cases is that a compilation may be copyrightable, but enforcement often turns on the degree or thickness of protection with ordinary compilations of raw data on one end and creative compilations of value-added information on the other.

A series of cases have also dealt with the issue of protection of compilations in the form of judicial reports. Copyright protection is not given for the reports themselves since they are a part of the law and appropriately in the public domain. This long-standing position is codified in § 105 of the 1976 Act. However, any head notes or summaries provided by the publisher are protected. In the 1986 West Publishing v. Mead Data case, the 8th circuit held that the “star pagination” linking system to hardbound reports was protected since it “reflects and expresses West’s arrangement” and issued an injunction. However, in 1999 the 2nd Circuit decided two cases: In Hyperlaw, the court concluded that standard information (such as case captions, court information, date, references to other cases, attorneys) contained in the reports were lacking in originality. In Bender, the court expressed its disagreement with the 8th Circuits West opinion in concluding that no authority exists for protecting pagination as a reflection of arrangement and that West was based on the defunct “sweat of the brow” doctrine.