Re: copyrighting of numbers

Terry Carroll <carroll[_at_]tjc.com> wrote:
>
> On Wed, 6 May 1998, Alan D. Sugarman <sugarman[_at_]hyperlaw.com> wrote:
> >
> > This logic has always escaped me. The Supreme Court said there was not
> > enought originality in Fiest. So Congress responds with a database bill
> > that provides copyright like protection in the absence of originality.
> > Following the logic of the analysis of supporters of the bill, under
> > the Commerce Clause, Congress could then enact legislation providing
> > copyright like protection to any and all types of non-creative
> > non-original works. Thus, the requirements of the Copyright Clause
> > mean nothing.
>
> The requirements of the Copyright Clause indeed mean nothing for a statute
> that was not enacted under that clause and that deals with subjecte matter
> that by definition is outside of that clause.
>
> Similarly, the Copyright Clause does not prevent Congress from enacting
> trademark laws.
>

[snip]
>
> There is no Constitutional prohibition against protecting things other
> than writings of authors.
>

I don't think the constitutional issue can be dismissed this easily.

Suppose Congress, relying on the recently-discovered writings of Mark Twain, were to enact perpetual copyright protection. [They're close enough already, but that's another story]. Litigants would surely object that it violates the "limited times" provision of the Copyright Clause. "Aha," reply the crafty legislators [this is a hypothetical, you'll recall], "but we didn't enact the law under the Copyright Clause -- we enacted it under the Commerce Clause. And the Commerce Clause has no such limitation."

Is this bill constitutional? If so, there is no substance whatsoever to the Copyright Clause.

If not (as I suspect), it must be that the clauses somehow divide up territory -- some subject matter falls within the patent/copyright realm, and some other subject matter does not. As to the matter in the patent/copyright realm, it can be protected, but only within the constitutional limits of the Copyright Clause.

Then the question becomes, where do databases fall. Now, I think this is a hard question. They are clearly "works of authorship" -- witness the fact that the vast majority of them in fact qualify for copyright protection. The problem in Feist was that that particular database wasn't an *original* work of authorship. But you can argue, and all courts to consider the issue (including ProCD v. Zeidenberg) appear to have concluded, that it is still in the copyright realm -- it just doesn't meet the *requirements* of copyright law. [The Court concludes something similar in the patent preemption cases]. If that is so, *and* if the Court was serious in Feist that originality is a constitutional requirement, then arguably Congress can't simply change the words from "copyright" to "database right" and evade the command of the Copyright Clause.

Mark A. Lemley
Assistant Professor, University of Texas School of Law Of Counsel, Fish & Richardson, P.C.
mlemley[_at_]mail.law.utexas.edu
Note CHANGED office phone: 512/232-1342

Information on UT's Intellectual Property program: http://www.utexas.edu/law/acadaff/intelprop/

My publications list: http://www.law.utexas.edu/lemley/pubs.htm Received on Fri May 08 1998 - 18:05:52 GMT