Document Type

Article

Publication Date

1992

Center/Program

Kernochan Center for Law, Media and the Arts

Abstract

The Supreme Court's unanimous decision last Term in Feist Publications, Inc. v. Rural Telephone Service Co.3 proscribed copyright protection for works of information that fail to manifest a modicum of creative originality in selection or arrangement. Discarding a long-if lately uneasy-tradition of U.S. copyright coverage of informational works that display far greater industriousness than imagination, the Court ruled that copyright does not secure the "sweat of the brow" or the investment of resources in the compilation of a work of information. The Court thus stripped away or sharply reduced the copyright protection afforded a variety of "information products," from directories and mailing lists to computerized databases.

The Court not only grounded its decision in the text of the copyright statute, but declared-and several times reiterated-that a threshold of creative originality was "constitutionally mandated."'4 The frequent invocations of the Constitution are not merely rhetorical flourishes; they implement a policy favoring general, free access to disclosed data.5 If these invocations reduce debate regarding the availability and the scope of copyright protection for works of information, they augment the uncertainties concerning both the availability of state law protection and the authority of Congress to enact other forms of federal anticopying protection for these kinds of works. The Feist Court's sweeping declarations of constitutional limitations on Congress' copyright power put in issue the respective roles of the Court and Congress in defining not only the contours and key terms of copyright law, but also the scope of Congress' authority to provide for intellectual property protection under other constitutional sources of legislative power.

In an article published in this Review shortly before the Feist decision, I argued that courts should recognize that U.S. law had evolved two different kinds of copyright protection, for "high authorship" and "low authorship" works respectively.6 The latter kinds of works, such as directories, maps, computer databases, and similar information compilations, may manifest little, if any, creative originality, but are highly useful endeavors. Since the first copyright statute in 1790, Congress had sought to encourage production of these kinds of works. In high authorship works, such as novels, paintings, and musical compositions, an authorial personality permeates the work; the creation emanates from the subjective choices made by the author in her elaboration of the work. The object of protection in low authorship works is necessarily different from that of high authorship creations. A high authorship work represents not only economic interests, but the persona of its creator(s), and exploitation of the copyright in these kinds of works therefore implicates both the spirit and the flesh. 7 By contrast, copyright in low authorship works essentially secures the labor and resources-or "sweat"-invested in the work. Assertions that the copyright covers the compiler's personal selection and arrangement of data are often largely pretextual.

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