Re: Copyright and conflicts of law

On Thu, 03 Jul 1997, Nikki Miller <nmiller[_at_]chq.byu.edu> wrote:
>
> I have a copyright/conflicts of law question. I understand that the
> sweat of the brow doctrine, rejected by the U.S. Supreme Court in
> Feist, is still followed in the UK. Is it true then that you could
> extract the purely factual information from any copyrighted
> compliation in the U.S. (so long as you didn't reproduce the
> selection and arrangement), even if it was created by a British
> author and published in the UK?

Feist does not eradicate all protection for compilations but the US certainly protects less than the UK.

> If so, would it constitute copyright infringement under UK copyright
> law if you then distributed, displayed, and/or reproduced the
> extracted information in the UK?

Yes. Public performance (includes public display), reproduction and adaptation are exclusive rights under UK law. If the infringing act is done in the UK and the work is created under UK law, then you have an infringement even if it is indirect because the reproduction or adaptation is made by referring to an intermediate copy or adaptation made legally (or otherwise) elsewhere.

UK law does not protect information but it does protect the expression of the information. The sweat of the brow doctrine is purely applied in determining whether there is a protectable work, for determining what is original for the purposes of copyright law.  It is not used for determining infringment. In Feist it was found that there was not sufficient originality in a phone book for it to be protected. In the UK there probably would be.

If you did not reproduce the selection, arrangement or expression of facts, then you have not infringed under UK law. Of course, working out where exactly this line is crossed is why lawyers get paid the bucks ;-)

> Would the extracted information constitute a "lawfully obtained copy"
> because it was lawfully created under U.S. law (though not under
> British copyright law) and be excepted from the display and
> distribution rights in the UK under the first sale doctrine?

There is no distribution right per se under UK law although there are mechnisms for preventing the distribution of copies made in other countries.

As far as I'm aware, there is no `first sale doctrine' under UK law but there is a principal of non-derogation from a grant. I can't see how the latter could be applied here as the owner did not make the grant so could hardly be party to any implied agreement.

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