"Thin" copyrights

Jessica Litman writes:
>
> . . . I have never understood the assertion that it does not give
> copyright protection to facts themselves to make it illegal to copy
> them from the claimant of a copyright in a particular work containing
> the facts, because I can always go out and copy the facts from some
> independent source. Copyright, after all, only gives the copyright
> holder protection against copying from the protected work -- it is
> never copyright infringment to go out and secure content identical to
> the protected content from independent sources. I see no difference
> between saying that the facts themselves are covered by copyright law
> and saying that the facts are unprotected by copyright law but
> copyright law prohibits anyone from copying them.
 

     Sure, copyright theory tells me that I am perfectly free to go off by myself and independently recreate word-for-word John Grisham's latest novel, and if I do we'll both have copyrights in our coincidentally identical works. The access + substantial similarity test for infringement, however, not to mention the doctrine of "unconscious copying" if I admit to having read the book, means as a practical matter that I am not free at all to reproduce any of the protected elements of his work.

     It is only in this sense, in fact, that copyright protects "things" at all; at the most fundamental level, copyright protects only against copying. A thin copyright in the electronic form of a collection of facts or other public domain materials would do no more. In fact, under my approach it would do less, because it would protect only against certain unfair methods of copying, not all copying.

     The thin copyright in electronic representations would, of course, allow independent gathering or digitizing of whatever facts or other works they contain, notwithstanding access and notwithstanding a deliberate intent to create a wholly identical work (to the extent no other copyrights are involved besides the thin electronic-form copyright we're talking about). Once the second effort has been made, the work containing the identical material may be distributed in direct competition with the "protected" work. In this sense, too, the content of the electronic representation is not protected by the thin copyright.

Dennis S. Karjala
Professor of Law
Arizona State University
Tempe, Arizona 85287
602-965-4010
602-965-2427 (fax)
dennis.karjala[_at_]asu.edu Received on Fri Feb 16 1996 - 01:08:32 GMT