Re: US Supreme Ct "Feist" Decision

Carl Oppedahl wrote:
> 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.

It is unclear in Canada whether Feist would or would not be followed (as it is in Australia). It does however provide a useful case to illustrate where the borderline is for protection of `selection' and `arrangement' of material no matter what jurisdiction is being considered.

> 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.

There are a number of issues (many identified by Carl). 1) Can he stop the original manuscripts from being reproduced? 2) Can he stop translations of the original manuscripts from being

   reproduced?
3) Can he stop transcriptions of the original manuscripts from being

   reproduced?
4) Can he stop commentary and notes to the manuscripts from being

   reproduced?
5) Can he stop somebody from substantially reproducing the selection

   of materials included in a collection of manuscripts?

Issue 1: Has been dealt with on this list recently. Reproduction of the actual manuscripts can only be controlled by physical access and reproduction of photographs of the manuscripts probably cannot be prevented either (this was a little disputed).

Issue 2: There is separate copyright in a translation and the copyright term begins from when the translation was made/published.

Issue 3: Where is the border between reproduction and deriviative work? `Sweat of the brow' may be relevant here even in the US. Maybe we could discuss the situation for a hypothetical transcription of hand written letters in 16th Century English.

Issue 4: Yes. They are a separate protectable work.

Issue 5: Very dependent on jurisdiction.

> That's not a Feist issue, as I am sure you will appreciate from the above.

Feist is relevant but only to issue 5.

I would reaffirm the advice to seek competent legal counsel. If you publish the work in the traditional way, the publisher will probably defend what copyright they can (and also have a team of lawyers intimately familiar with international copyright issues).

Tim Arnold-Moore, LL.B. (Melb)      | Multimedia Database Systems, CITRI  |
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