Re: Databases, creativity, and copyright -- what's missing is wrong?

Karsten M. Self <kmself[_at_]ix.netcom.com> wrote:
>
> I've just been reading an analysis of Feist Publications v. Rural
> Telephone Service, which established that a phone directory is not
> subject to copyright protection.
>
> Opinion at:
> http://caselaw.findlaw.com/scripts/getcase.pl?navby=search&linkurl=<%LINKURL%>&graphurl=<%GRAPHURL%>&court=US&case=/data/us/499/340.html
>

[snip]
>
> I'm suggesting that it's the missing data, and the lack of errors, in
> a strict compilation, which both provide value, constitute the unique
> attribute, and are the originality of a database.
>
> If data selection, quality assurance, and validation routines are
> original and creative activities, were they raised in the arguments in
> this case? I find no indication that they were considered significant
> in the ruling. If these activities are sufficient to impart originality
> to the resulting database, shouldn't databases be considered
> copyrightable, and protected (as a whole) under the existing 1980
> Copyright Act?
>
> Is the 1998 Database Act really necessary?

Karsten,

  You are describing the "sweat of the brow" theory of copyright, which was overturned by Feist. All of the hard work that goes into making a compilation do not count, after Feist. The criteria is "originality", and not cost or hard work to compile. The newer initiatives are in response to this judicial standard.

  The Feist standard will be modified when either the Supreme Court overturns it, or when legislation is passed that modifies the law. The legislature is taking the second approach.

-- 
Thomas E. Workman Jr.
41 Harrison Street
Taunton, MA 02780

EMAIL: tworkman[_at_]erols.com
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