• Feist approached Rural to negotiate a license to use Rural’s directory in an aggregated directory of several districts. Rural refused. Feist went ahead and copied the directory anyway. • Rural sued Feist for copyright infringement. Feist argued that copyright did not subsist in a collection of telephone numbers and addresses [the white pages].
Lecture 2
US Copyright Law in its Constitutional Framework
(1) Constitutional Foundations
• “Congress shall have power to promote the progress of science by securing for limited times to authors the exclusive rights to their writings” Article I.8.8.
• (a) “Authors”
– What does it mean to vest exclusive rights in authors?
• Copyright and Databases/Factual Works:
– Feist Publications v. Rural Telephone Services , 499 U.S. 340 (1991)
– Effort/investment in themselves are ns constitutional impediments to the enactment of DATABASE protection laws.
– Cf EC Database Directive [Directive 96/9/EC on the Legal Protection of Databases. O.J.E.C. No. L 777/20 (23.3.96)
§ 103. Subject matter of copyright: Compilations and derivative works (a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully. (b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.
• Domestic Constitutional Limits on the Scope of Copyright.
– – – – (a) “authors” (b) “limited times” (c) “writings” (d) exclusive rights.
• Some of the key terms in the Constitution’s Copyright Clause have provoked litigation; others have not. • Examine each in turn. • Remember that the federal government in the U.S. is a government of limited constitutional power. Residual sovereignty resides with the individual states.
• The case reached the Supreme Court.
• •
•
§ 102. Subject matter of copyright: In general (a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: (1) literary works; (2) musical works, including any accompanying words;(3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works;(5) pictorial, graphic, and sculptural works;(6) motion pictures and other audiovisual works;(7) sound recordings; and(8) architectural works.(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
• Feist could have been decided as a matter of statutory interpretation.
– The Supreme Court could have said that this compilation (Rural’s White Pages) was insufficiently original
• But, instead, the court (also) said that originality/authorship are constitutional requirements.
• The Court also held that a work must be “sufficiently creative”
• Rural Telephone Services Co. provided telephone services in northwest Kansas. It was subject to a state regulation that required it to produce a telephone directory [white and yellow pages] • Feist Publications Inc. was a publishing company that specialized in area-wide telephone directories.
• Merely alphabetizing a work [organizing a telephone directory in alphabetical order] is insufficient
• Accordingly, Rural’s telephone directory was in the public domain. • The Supreme Court rejected “sweat of the brow” [effort/investment] as a basis for copyright protection.
– The organization of pre-existing material, including facts
• § 102. Definitions.
– A “compilation” is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term “compilation” includes collective works.