On 5/12/97, Dennis S. Karjala <dennis.karjala[_at_]asu.edu> wrote:
>
> Derric Oliver <doliver[_at_]jazz.fantasyjazz.com> writes:
> >
> > Example, (forgive my lack of map terms) but some maps are for purposes
> > of showing elevation; some are for purposes of showing climate, some
> > are used to show population of humans, wildlife, etc..
> >
> > Any new, unique combination of any of these purposes could constitute
> > enough new expression to be afforded copyright protection.
>
> This is why I said in an earlier posting that map protection under
> copyright is difficult. A "new, unique combination," including a highly
> creative one, is or at least should be considered a method of presenting
> information and excluded from protection under section 102(b). Consider
> the first person who drew a contour map--a very useful way of showing
> three dimensions with only two. If his "creativity" in showing the
> topograpy with equal-height contours is protected by copyright, then no
> one else can make a contour map of anything else, not even a completely
> different piece of geography, let alone the same piece covered by the
> original map. On the other hand, if that methodology is not copyright
> protected, then nothing in copyright prevents a second comer from drawing
> even the same geographical area using that method, notwithstanding that,
> to the extent both mapmakers are accurate, the endproducts will be very
> nearly identical, at least in their "factual" content (which is about all
> anyone is interested in with most maps). If the information in the map
> (as opposed to the new method of its presentation) is "bare bones"
> factual information, arguably nothing in the map is protected and a
> second comer does not infringe even by direct copying or tracing.
But wouldn't the concept of drawing contour lines be a non-copyrightable mmethod of operation? The particular choice of 20' or 5' contours, dotted lines or dashed, blue or gray, may be expressive, but the use of the lines themselves certainly look to be on the idea side of the dichotomy to me.
> Similarly for a particular combination of items depicted, such as
> climate, wildlife, etc. If any particular combination is protected, no
> second comer can show that same combination even for a new map of a
> different area. (He will be said to have appropriated the first
> mapmaker's "selection" of items depiction.)
With maps, much of the time won't there be a problem with merger or at least mise en scene, there not being many other reasonable ways than a wiggly blue line to denote a river?
> I recognize that this result follows from the approval by Judge Winter
> in Key Publications (945 F.2d 509) of a telephone yellow page
> classification set, but for that reason I think this dictum (there was
> ultimately a finding of no infringement in the case) is incorrect. The
> problem is that we're trying as a matter of social policy in these cases
> to protect "sweat"--the investment of time and money in creating the
> first work.
Some of us would say that Feist expresses the public policy, and that those who are trying to find end runs around it are greedy bastards trying to subvert the public policy.
> Feist says we cannot protect sweat, so if Feist applies to maps, we
> have to find some other ground. The result is likely to be either
> underprotection (by treating bare-bones maps as unoriginal factual
> information) or overprotection (by treating the methodologies for
> presenting factual information in maps as protected). There are
> already a number of examples in each direction.
The real problem is that no one protects the public domain in copyright (or patent) suits. The expropriator and the pirate are both in court, but the public domain is not represented. Perhaps, like trees, pd needs standing.
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