Re: US Supreme Ct "Feist" Decision

At 03:15 PM 10/25/95 -0400, "Ron B. Thomson" <thomson[_at_]epas.utoronto.ca> wrote:
>
> As a non-American, I am not familiar with the "Feist" decision
> concerning ancient/medieval texts published in print. I have now run
> up against a firm planning to use excerpts from our books. Can someone
> supply me with a date/reference for this decision, and any short
> analysis of its meaning and any limitations.

The case you heard of is probably Feist Publications Inc. v. Rural Telephone Service Co. Inc., 18 USPQ2D 1275, 499 US 340, 111 SCt 1282 (US SupCt 1991). That case is *not* "concerning ancient/medieval texts published in print". It is a "phone book" case, which arose because someone was keying the contents of a White Pages (alphabetical) telephone directory into a computer and reselling the information. The phone company didn't like that, and sued.

In the US for many years (and in many other countries to this day) the copyright laws are interpreted as protecting both the creation of original works and the "sweat of the brow". Someone who went to the trouble, say, to write an original book could stop those who copied the book. Someone who went to the trouble to collect lots of information and put it in one place, even if no originality was involved, could stop those who copied the collection. This latter scope of protection is referred to as "sweat of the brow". Traditional beneficiaries of such protection include those who publish racing forms, sports statistics, stock market historical data, mailing lists, phone books, court opinions, and newspapers.

There is big money in phone books. Phone companies have traditionally enjoyed non-negligible profits from reselling and licensing the contents of their phone books. Phone companies hate the idea that somebody could simply buy one copy of a phone book, key the contents into a computer, and sell as many copies as they wish of the computer data (sharing none of the proceeds with the phone company). In the Feist case, the US Supreme Court pulled the rug out from under the phone companies, saying that Feist was not a copyright infringer when it keyed the contents of a phone book into a computer and resold the data.

The holding is a narrow one, applying only to alphabetical telephone listings. The Court explained that the information itself (the subscriber name, where they live, etc.) is purely factual, and not the result of any original authorship by the phone company. Copying such items of information was not impermissible copying under the US copyright laws, said the Court. What's more, the Court explained, reproducing the ordering or grouping of entries (alphabetically, grouped by letters of the alphabet) was likewise not the copying of anything original; alphabetical ordering is the classic opposite of an original sequence. The US Supreme Court explicitly rejected the notion that "sweat of the brow" was protectible copyright subject matter.

To stress the point, the holding is narrow. It specifically left room for the possibility that a publisher of Yellow Pages (grouped by industry or product area) might have added sufficient originality through the selection of areas and headings, and through the placement of items into areas, that copying Yellow Pages might count as infringement. And of course it limits itself explicitly to US copyright law.

> This is also of interest to our European partners/distributors who
> may run up against similar problems over the texts they publish.
>
> Ron B. Thomson
> Director of Publications
> Pontifical Institute of Mediaeval Studies
> Toronto, Canada M5S 2C4
> phone: 416-926-7143 fax: 416-926-7258
> thomson[_at_]epas.utoronto.ca

While the courts of countries outside of the US might choose to follow Feist, nothing forces them to do so. Perhaps copyright practitioners in countries outside the US might wish to comment; I have the impression that many countries of Europe continue to protect "sweat of the brow", for example.

I can't tell for sure from your comments, but it seems your concern may be a different one: can a publisher of old manuscripts stop others from copying the old manuscripts. The argument, of course, is that the copyright in the old manuscripts must surely have expired long ago. That's not a Feist issue, as I am sure you will appreciate from the above.

The present-day publisher of old manuscripts will, of course, in some cases have added original subject matter, perhaps by the insertion of chapter and verse numbering, annotations, provision of alternative translations of difficult words, and other scholarly activities. A concordance or index may have been added. What's more, in some cases the publisher may have drawn upon several versions of an old work, picking and choosing to try to find the best guess as to the text of the original. A court might decide that some, or none, or all of these activities added protectible original subject matter. And, if you are in a country that presently protects "sweat of the brow", then a court might find that some of these activities added protectible "sweat of the brow" subject matter.

If you really care about all of this, I strongly urge you to seek the advice of experienced copyright counsel.

---
Carl Oppedahl, oppedahl[_at_]patents.com  Oppedahl & Larson, patent law firm
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