- Ordinary compilations of data may not possess the requisite level
of creativity to be copyrightable at any level of abstraction.
- As Feist makes clear, the degree of copyright protection for
factual databases is thin and covers only the selection and arrangement.
- The idea/expression or fact/expression dichotomy limit which portions
of the work receive protection only expressive portions are protected.
- Any portion of the work that is a part of the public domain may not
- Copyright law is not utilitarian and does not protect works that are
the product of “sweat of the brow” alone.
- Protection from otherwise infringing activity of copyrightable portions
of the work may be denied under the doctrine of Fair Use.
- Databases often have more value by being more encompassing, but does
this undermine the selection required for copyrightability?
- Anti-Circumvention (A-C)
- Only operates with works that are protected if the database is not
copyrightable because it lacks any originality, then A-C
does not operate.
- Only erects a barrier to entry. It does not protect each copyrightable
element of the work once someone has “breached the digital wall.”
- §1201 carves out a number of exceptions to the protection. Most notably,
§1201(c) states that many of the contours of copyright law (including
fair use) are left intact.
- According to Chamberlain, A-C liability is not strict in that
it applies only when the defendant subsequently infringes the work
following breach for instance, A- C does not apply if the defendant
is protected by fair use.
- According to Lexmark, A-C protects against only unauthorized
access to the work; it does not protect against use
of a product containing the copyrighted work.
- Although a minimal requirement, A-C only operates if the TPM “effectively
- Subject matter limitation or limitation by additional elements to
avoid preemption by patent and copyright law.
- Direct competition.
- Reduce incentive.
- Not available in many jurisdictions.
- Unpredictable, variable, and unreliable.
- Trade secret
- Limited to databases that convey a competitive advantage
- Although it would be possible to license access to the database as a way of conveying rights to such
competitive advantage, trade secret protection may be undermined where there are too many licensees (i.e., the database is no
longer secret or competitive) or where the database itself is the product consumed
- Only applies to parties to the contract, not to third party “hackers.”
- Assumes that interested parties will be able to reach an agreement
with the database “owner.”
- Assumes that contract is enforceable. There may be a “failure
of consideration” if the database is subsequently found unprotectible.