111 S. Ct. 1282; 113 L. Ed. 2d 358; 1991 U.S. LEXIS 1856; 59 U.S.L.W. 4251; 18 U.S.P.Q.2d (BNA) 1275; Copy. L. Rep. (CCH) ¶ 26,702; 68 Rad. Reg. 2d (P & F) 1513; 18 Media L. Rep. 1889; 121 P.U.R.4th 1; 91 Cal. Daily Op. Service 2217; 91 Daily Journal DAR 3580
Case history
Prior
Summary judgment for plaintiff, 663 F. Supp.214 (D. Kan. 1987); affirmed, 916 F.2d718 (10th Cir. 1990); affirmed, full opinion at 1990 U.S. App. LEXIS 25881 (10th Cir. 1990); cert. granted, 498U.S. 808(1990).
Holding
The white pages of a telephone book did not satisfy the minimum originality required by the Constitution to be eligible for copyright protection, and effort and expenditure of resources are not protected by copyright. Tenth Circuit Court of Appeals reversed.
Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991), was a landmark decision by the Supreme Court of the United States establishing that information alone without a minimum of original creativity cannot be protected by copyright.[1] In the case appealed, Feist had copied information from Rural's telephone listings to include in its own, after Rural had refused to license the information. Rural sued for copyright infringement. The Court ruled that information contained in Rural's phone directory was not copyrightable and that therefore no infringement existed.
Rural Telephone Service Company, Inc. is a telephone cooperative providing services for areas in northwest Kansas, with headquarters in the small town of Lenora, in Norton County. The company was under a statutory obligation to compile and distribute a "white pages" phone directory of all its customers free of charge as a condition of its monopoly franchise.
Feist Publications, Inc. specialized in compiling telephone directories from larger geographic areas than Rural from other areas of Kansas. It had licensed the directory of 11 other local directories, with Rural being the only holdout in the region. Despite Rural's denial of a license to Feist, Feist copied 4,000 entries from Rural's directory. Because Rural had placed a small number of phony entries to detect copying, Feist was caught.
Before this case, the substance of copyright in United States law followed the sweat of the brow doctrine, which gave copyright to anyone who invested significant amount of time and energy into their work. At trial and appeal level the courts followed this doctrine, siding with Rural.
Ruling of the court
The ruling of the court was written by Justice Sandra Day O'Connor. It examined the purpose of copyright and explained the standard of copyrightability as based on originality.
The case centered on two well-established principles in United States copyright law: that facts are not copyrightable, and that compilations of facts can be.
"There is an undeniable tension between these two propositions", O'Connor wrote in her opinion. "Many compilations consist of nothing but raw data—i.e. wholly factual information not accompanied by any original expression. On what basis may one claim a copyright upon such work? Common sense tells us that 100 uncopyrightable facts do not magically change their status when gathered together in one place. … The key to resolving the tension lies in understanding why facts are not copyrightable: The "Sine qua non of copyright is originality."
Rural claimed a collection copyright in its directory. The court clarified that the intent of copyright law was not, as claimed by Rural and some lower courts, to reward the efforts of persons collecting information—the so-called "sweat of the brow" or "industrious collection" doctrine—but rather "to promote the Progress of Science and useful Arts" (U.S. Const. Art. I, § 8, cl. 8)—that is, to encourage creative expression.
The standard for creativity is extremely low. It need not be novel; it need only possess a "spark" or "minimal degree" of creativity to be protected by copyright.
In regard to collections of facts, O'Connor wrote that copyright can apply only to the creative aspects of collection: the creative choice of what data to include or exclude, the order and style in which the information is presented, etc.—not to the information itself. If Feist were to take the directory and rearrange it, it would destroy the copyright owned in the data. "Notwithstanding a valid copyright, a subsequent compiler remains free to use the facts contained in another's publication to aid in preparing a competing work, so long as the competing work does not feature the same selection and arrangement", she wrote.
The court held that Rural's directory was nothing more than an alphabetic list of all subscribers to its service, which it was required to compile under law, and that no creative expression was involved. That Rural spent considerable time and money collecting the data was irrelevant to copyright law, and Rural's copyright claim was dismissed.
All the justices joined O'Connor's opinion except Harry Blackmun, who concurred only in judgment, but did not file a separate opinion.[2]
The ruling has major implications for any project that serves as a collection of knowledge. Information (facts, discoveries, etc.) from any source is fair game, but cannot contain any of the "expressive" content added by the source author. That includes not only the author's own comments, but also their choice of which facts to cover, which links to make among the bits of information, the order of presentation (unless it is something obvious like alphabetical), evaluations of the quality of various pieces of information, or anything else that might be considered the author's "original creative work" rather than mere facts.
For example, a recipe is a process, and not copyrightable, but the words used to describe it are; see idea-expression divide and Publications International v. Meredith Corp. (1996).[3] Therefore, a recipe can be rewritten with different wording and be published without infringing copyright. If an individual rewrote every recipe from a particular cookbook, they might be found to have infringed the author's copyright in the choice of recipes and their "coordination" and "presentation", even if they used different words, but the West decisions below suggest that this is unlikely unless there is some significant creativity carried over from the original presentation. A sufficiently novel, useful, and unique (i.e. non-obvious) recipe can be granted protection under patent law.[4]
Feist proved most important in the area of copyright of legal case law publications. One might assume that the text of U.S. case law is in public domain, but Thomson West claimed a copyright as to the first-page citations and internal pinpoint page citations of its versions of court opinions (case law) found in its printed versions of the case law ("West's citation claims"). West also claimed a copyright in the text of its versions of the case law, which included parallel citations and typographical corrections ("West's text claims"). The text claim would have barred anyone from copying the text of a case from a West case law reporter, since the copied text would include West enhancements to which West claimed copyright.
In a 1986 pre-Feist case, West's citation copyright claim was affirmed by the U.S. Court of Appeals for the Eighth Circuit in a preliminary injunction case brought by West against Mead Data, owner of Lexis (West v. Mead),[5] but in a case commenced in 1994 in the U.S. District Court for the Southern District of New York, the U.S. Court of Appeals for the Second Circuit found Feist to have undermined the reasoning in West v. Mead. West's citation claims were challenged in 1994 by legal publisher Matthew Bender & Company and by a small CD-ROM publisher HyperLaw, Inc. HyperLaw intervened, joining Matthew Bender in the citation challenge and separately challenging West's text copyright claims. In 1998, the Second Circuit found that West did not have a protectable copyright interest in its first-page citations or its internal pagination citations (Matthew Bender v. West, Citation Appeal).[6] The Second Circuit thereby rejected a Minnesota district court's 1996 determination (Oasis Publishing Co. v. West Publishing Co., 924 F.Supp. 918, D. Minn.) that Feist does not change the outcome of West.
In the same case, but in separate decisions in which Matthew Bender was not involved, HyperLaw successfully challenged West's text claims. Judge John S. Martin ruled HyperLaw's favor against West in the May 1996 U.S. District Court decision Matthew Bender v. West, No. 94 Civ. 0589, 1997 WL 266972 (S.D.N.Y. May 19, 1997), aff'd, 158 F. 3d 674 (2nd Cir. 1998), cert. denied sub. nom.West v. Hyperlaw, 526 U.S. 1154 (1999).[7] West lost to HyperLaw on appeal to the U.S. Court of Appeals for the Second Circuit and the U.S. Supreme Court denied certiorari.[8]
After West v. Mead, Mead Data and Lexis were acquired by Reed Elsevier, a large English-Dutch based publisher. During Matthew Bender v. West, Reed Elsevier and Matthew Bender entered into a strategic relationship, culminating in Reed Elsevier's acquisition of Matthew Bender in 1998, just after the Second Circuit appeals were argued. Reed Elsevier was now on West's side and filed an amicus brief opposing HyperLaw and supporting West. Thus, though the name of the case might suggest that Matthew Bender challenged West on the text claim, by the middle of the case Matthew Bender was on West's side on the text issue. Reed Elsevier's support of West's claims to a copyright in text was consistent with the initiatives, discussed below, to sidestep Feist by implementing database protection, through legislation and treaties discussed below. Similarly, during the case, West was acquired by the Canadian-based international publisher the Thomson Corporation.
Another case covering this area is Assessment Technologies v. Wiredata (2003),[9] in which the Seventh Circuit Court of Appeals ruled that a copyright holder in a compilation of public domain data cannot use that copyright to prevent others from using the underlying public domain data, but may only restrict the specific format of the compilation if that format is itself sufficiently creative. Assessment Technologies also held that it is a fair use of a copyrighted work to reverse engineer that work in order to gain access to uncopyrightable facts. Assessment Technologies also created new law, stating that it is a copyright misuse and an abuse of process to attempt to use a contract or license agreement based on one's copyright to protect uncopyrightable facts.
The applicability of copyright to phone directories has come up in several other countries.
In Canada, the appeal-level case of Tele-Direct (Publications) Inc. v. American Business Information Inc. (1997) 76 C.P.R. (3d) 296 (F.C.A.) reached a similar result to Feist's. But the Supreme Court partially backed away from the originality doctrine in CCH Canadian Ltd. v. Law Society of Upper Canada. Under CCHCanadian, someone may assert protection in a database where the facts are themselves not copied from another source. For example, a person may assert protection in a collection of their own recipes, but may not assert protection in a database of facts about persons and their ancestry compiled from census records.
In Australia, the Federal Court decision Desktop Marketing Systems v Telstra[12] followed the UK approach in Walter v Lane and ruled that copyright law did, in fact, follow the "sweat of the brow" doctrine. But Desktop v Telstra held, like CCH Canadian, that collections of facts must not be copied from other sources to be eligible for protection. In 2010, the Telstra decision was overturned by Justice Gordon in Telstra v Phone Directories,[13] following the decision of the High Court in IceTV v Nine Network.[14]
In India, the Supreme Court case Eastern Book Company & Ors vs D.B. Modak & Anr (where the respondents had compiled CD-ROMs of Supreme Court rulings with text sourced from copyedited publications of them by Eastern Book Company, albeit with copyrightable headnotes and other original content removed) cited both Feist and CCH Canadian, establishing that a work needed to demonstrate labor or effort—but not only labor—in order to be an "original", copyrightable work. In this case, the Court held that the copy-edited text of public domain court documents did not "depict independent creation even a modicum of creativity." This ruling contrasted previous rulings such as Govindan v E.M. Gopalakrishna Kone and Burlington Home Shipping Pvt Ltd v Rajnish Chibber, which followed the British approach of skill and labor.
Compilations of data or other material, whether in machine readable or other form, which by reason of the selection or arrangement of their contents constitute intellectual creations shall be protected as such. Such protection, which shall not extend to the data or material itself, shall be without prejudice to any copyright subsisting in the data or material itself.
The text mirrors that of Article 2(5) of the Berne Convention, which applies to "collections of literary or artistic works".
This treaty provision is broadly in line with the United States Copyright Act and the Act's case law, which protects compilations of data whose "selection and arrangement" is sufficiently original. See17U.S.C.§101 ("compilation" as defined by the United States Copyright Act includes compilations of data). The standard for such originality is fairly low; for example, business listings have been found to meet this standard when deciding which companies should be listed and categorizing those companies required some kind of expert judgment. See Key Publ'ns, Inc. v. Chinatown Today Pub. Enters., 945 F.2d 509 (2d Cir. 1991) (applying Feist). As such, implementation of this treaty would not overrule Feist.
Fair use is a doctrine in United States law that permits limited use of copyrighted material without having to first acquire permission from the copyright holder. Fair use is one of the limitations to copyright intended to balance the interests of copyright holders with the public interest in the wider distribution and use of creative works by allowing as a defense to copyright infringement claims certain limited uses that might otherwise be considered infringement. The U.S. "fair use doctrine" is generally broader than the "fair dealing" rights known in most countries that inherited English Common Law. The fair use right is a general exception that applies to all different kinds of uses with all types of works. In the U.S., fair use right/exception is based on a flexible proportionality test that examines the purpose of the use, the amount used, and the impact on the market of the original work.
Itar-Tass Russian News Agency v. Russian Kurier, Inc., 153 F.3d 82, was a copyright case about the Russian language weekly Russian Kurier in New York City that had copied and published various materials from Russian newspapers and news agency reports of Itar-TASS. The case was ultimately decided by the United States Court of Appeals for the Second Circuit. The decision was widely commented upon and the case is considered a landmark case because the court defined rules applicable in the U.S. on the extent to which the copyright laws of the country of origin or those of the U.S. apply in international disputes over copyright. The court held that to determine whether a claimant actually held the copyright on a work, the laws of the country of origin usually applied, but that to decide whether a copyright infringement had occurred and for possible remedies, the laws of the country where the infringement was claimed applied.
The idea–expression distinction or idea–expression dichotomy is a legal doctrine in the United States that limits the scope of copyright protection by differentiating an idea from the expression or manifestation of that idea.
Apple Computer, Inc. v. Microsoft Corporation, 35 F.3d 1435, was a copyright infringement lawsuit in which Apple Computer, Inc. sought to prevent Microsoft and Hewlett-Packard from using visual graphical user interface (GUI) elements that were similar to those in Apple's Lisa and Macintosh operating systems. The court ruled that, "Apple cannot get patent-like protection for the idea of a graphical user interface, or the idea of a desktop metaphor [under copyright law]...". In the midst of the Apple v. Microsoft lawsuit, Xerox also sued Apple alleging that Mac's GUI was heavily based on Xerox's. The district court dismissed Xerox's claims without addressing whether Apple's GUI infringed Xerox's. Apple lost all claims in the Microsoft suit except for the ruling that the trash can icon and folder icons from Hewlett-Packard's NewWave windows application were infringing. The lawsuit was filed in 1988 and lasted four years; the decision was affirmed on appeal in 1994, and Apple's appeal to the U.S. Supreme Court was denied.
Originality is the aspect of created or invented works that distinguish them from reproductions, clones, forgeries, or substantially derivative works. The modern idea of originality is according to some scholars tied to Romanticism, by a notion that is often called romantic originality. The validity of "originality" as an operational concept has been questioned. For example, there is no clear boundary between "derivative" and "inspired by" or "in the tradition of."
The threshold of originality is a concept in copyright law that is used to assess whether a particular work can be copyrighted. It is used to distinguish works that are sufficiently original to warrant copyright protection from those that are not. In this context, "originality" refers to "coming from someone as the originator/author", rather than "never having occurred or existed before".
ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, was a court ruling at the United States Court of Appeals for the Seventh Circuit. The case is a significant precedent on the matter of the applicability of American contract law to new types of shrinkwrap licenses that arose with home computing and the Internet in the 1990s, and whether such licenses are enforceable contracts.
The Federal Reporter is a case law reporter in the United States that is published by West Publishing and a part of the National Reporter System. It begins with cases decided in 1880; pre-1880 cases were later retroactively compiled by West Publishing into a separate reporter, Federal Cases. The fourth and current Federal Reporter series publishes decisions of the United States courts of appeals and the United States Court of Federal Claims; prior series had varying scopes that covered decisions of other federal courts as well. Though the Federal Reporter is an unofficial reporter and West is a private company that does not have a legal monopoly over the court opinions it publishes, it has so dominated the industry in the United States that legal professionals, including judges, uniformly cite to the Federal Reporter for included decisions. Approximately 30 new volumes are published each year.
The Federal Supplement is a case law reporter published by West Publishing in the United States that includes select opinions of the United States district courts since 1932, and is part of the National Reporter System. Although the Federal Supplement is an unofficial reporter and West is a private company that does not have a legal monopoly over the court opinions it publishes, it has so dominated the industry in the U.S. that legal professionals uniformly cite the Federal Supplement for included decisions. Approximately 40 new volumes are published per year.
Telstra Corporation Ltd v Desktop Marketing Systems Pty Ltd was a 2001–2002 case in the Federal Court of Australia in which Telstra successfully argued that its copyright had been infringed by the reproduction of data from the White and Yellow Pages telephone directories in CD-ROM format.
Sweat of the brow is a copyright law doctrine. According to this doctrine, an author gains rights through simple diligence during the creation of a work, such as a database, or a directory. Substantial creativity or "originality" is not required.
Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191, was a decision by the United States District Court for the Southern District of New York, which ruled that exact photographic copies of public domain images could not be protected by copyright in the United States because the copies lack originality. Even though accurate reproductions might require a great deal of skill, experience, and effort, the key element to determine whether a work is copyrightable under US law is originality.
In copyright law, a derivative work is an expressive creation that includes major copyrightable elements of a first, previously created original work. The derivative work becomes a second, separate work independent from the first. The transformation, modification or adaptation of the work must be substantial and bear its author's personality sufficiently to be original and thus protected by copyright. Translations, cinematic adaptations and musical arrangements are common types of derivative works.
The copyright law of the United States grants monopoly protection for "original works of authorship". With the stated purpose to promote art and culture, copyright law assigns a set of exclusive rights to authors: to make and sell copies of their works, to create derivative works, and to perform or display their works publicly. These exclusive rights are subject to a time and generally expire 70 years after the author's death or 95 years after publication. In the United States, works published before January 1, 1929, are in the public domain.
Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510, is a case in which the United States Court of Appeals for the Ninth Circuit applied American intellectual property law to the reverse engineering of computer software. Stemming from the publishing of several Sega Genesis games by video game publisher Accolade, which had disassembled Genesis software in order to publish games without being licensed by Sega, the case involved several overlapping issues, including the scope of copyright, permissible uses for trademarks, and the scope of the fair use doctrine for computer code.
Paraphrasing of copyrighted material may, under certain circumstances, constitute copyright infringement. In most countries that have national copyright laws, copyright applies to the original expression in a work rather than to the meanings or ideas being expressed. Whether a paraphrase is an infringement of expression, or a permissible restatement of an idea, is not a binary question but a matter of degree. Copyright law in common law countries tries to avoid theoretical discussion of the nature of ideas and expression such as this, taking a more pragmatic view of what is called the idea/expression dichotomy. The acceptable degree of difference between a prior work and a paraphrase depends on a variety of factors and ultimately depends on the judgement of the court in each individual case.
Veeck v. Southern Bldg. Code Congress Int'l, Inc., 293 F.3d 791, was a 2002 en banc 9-6 decision of the United States Court of Appeals for the Fifth Circuit, about the scope of copyright protection for building codes and by implication other privately drafted laws adopted by states and municipal governments. A three-fifths majority of the court's fifteen judges held that copyright protection no longer applied to model codes once they were enacted into law.
Copyright in compilation is a facet of copyright law that may provide copyright protection to a compilation of material, irrespective of copyright in the underlying material.
Copyright protection is available to the creators of a range of works including literary, musical, dramatic and artistic works. Recognition of fictional characters as works eligible for copyright protection has come about with the understanding that characters can be separated from the original works they were embodied in and acquire a new life by featuring in subsequent works.
Georgia v. Public.Resource.Org, Inc., No. 18-1150, 590 U.S. ___ (2020), is a United States Supreme Court case regarding "whether the government edicts doctrine extends to—and thus renders uncopyrightable—works that lack the force of law, such as the annotations in the Official Code of Georgia Annotated" (OCGA). On April 27, 2020, the Court ruled 5–4 that the OCGA cannot be copyrighted because the OCGA's annotations were "authored by an arm of the legislature in the course of its legislative duties"; thus the Court found that the annotations fall under the government edicts doctrine and are ineligible for copyright.
References
↑ Feist Publications, Inc., v. Rural Telephone Service Co.,499U.S.340(1991).
↑ West Publishing Co. v. Mead Data Central, 799 F.2d 1219Archived 2005-11-29 at the Wayback Machine (United States Court of Appeals for the Eighth Circuit, 1986)
Ekstrand, Victoria S. (2002). "Drawing Swords After Feist: Efforts to Legislate the Database Pirate". Communication Law and Policy. 7 (3): 317–341. doi:10.1207/S15326926CLP0703_04. S2CID143547945.
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