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.
> ...
> with the body of the opinion suggesting that Rural's white pages
> listing fell short of this mark being a alphabetic compilation of
> all phone listings within Rural's service area, as required by
> Kansas state law.
> ...
> As someone with a background in database compilation and analysis,
> I can't help but wonder whether the court was looking in the right
> place in determining "originality" and "a modicum of creativity"
> in Rural's white pages. There are two tricks in compiling a
> substantatial database:
>
> - Getting the facts
> - Getting the facts right

Two interrelated points. First, it is not the job of the court, nor of the defendant, but rather solely that of the plaintiff to plead and prove copying of protected expression. Thus, to say that a court was looking in the wrong place for expression implies that such was the responsibility of the court. Rather, you should possibly have said that the plaintiff was looking in the wrong place.

Secondly though, I read the remainder of your post to be that it takes quite a bit of effort to get the facts right in a database. I don't think that was ever the issue. Rather, Feist has been taken as rejecting the "sweat of the brow" theory of copyright infringement, where you get credit for effort, and not expression.

You go on to dwell essentially on the work involved, and not on where you would find expression. While effort is commendable, it is not protectable under copyright, in and by itself.

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The preceding was not a legal opinion, and is not my employer's.
Original portions Copyright 1998 Bruce E. Hayden,all rights reserved
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Bruce E. Hayden                      bhayden[_at_]acm.org
Phoenix, Arizona                     bhayden[_at_]ieee.org
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