14 May, 2013

Retrospective - Sweaty brows, no reward?

One of the most influential cases formulating our understanding of what can be protected by copyright all over the World was the US case of Feist Publications Inc v Rural Telephone Services Co. The case concerned a telephone service provider, Rural Telephone Services. As the company provided said services, it had to collect and compile listing information, publishing the collection in a directory annually. The directory was in itself an alphabetical listing of people, their numbers, addresses and so forth, much like the Yellow Pages. Rural Telephone Services was one of over a dozen phone services providers in Kansas. Feist Publication sought to publish an area-wide directory, having bought the data and required rights from the other providers in order to do so, falling short when Rural Telephone refused to sell them their data. Not being ones to fail, Feist Publication took Rural Telephone's data anyway and used it without their consent, utilizing roughly 3% of their data without any modifications and a substantial part more with some amendments and changes. Upon noticing this Rural Telephone proceeded to sue Feist Publication for infringement.

The question falling ever so graciously on the US Supreme Court's lap was whether there was a copyright work to protect to begin with, without which the case would fall flat. The Supreme Court did consider other matters, such as fair use, substantiality (amount copied) etc., but the most influential of which was the consideration over the existence of copyright.

All that work for naught
In their decision the Supreme Court saw that the directory in itself, should it show sufficient originality, could potentially be protected by copyright as a whole; however the raw data - phone numbers, addresses etc. - could not be protected as it isn't an original work. If there is no originality, the work cannot fall under the protection of copyright and is thus free for all to use. To put it in simpler terms, the presentation of the facts is something that can be protected, but not the information. What the case changed significantly was the "sweat of the brow" or "industrious collection" test used by lowers courts which extended protection of compilations from only its presentation to the data as well, which the Supreme Court subsequently repealed. The Court in its decision saw that the test had wrongly interpreted the 1909 Act and thus skewed the main principle of copyright: one cannot copyright ideas or facts.

Sweat of the brow has been used by the courts prior as a means to extend copyright to collections of data purely through the laborious efforts of the person compiling the information, creating value in that work through the sheer efforts they have put into it. English courts have accepted the notion of sweat of the brow, although not in the same fashion as its counterparts over the pond.

Essentially what the Court iterated in its decision was the fact that there was no element of creativity. No work will attain copyright protection, regardless of the amount of work put into it. The compilation of lists, directories or other factual information, with no element of creativity in its presentation, will not be protected under copyright. As said, the presentation, layout of information for example, could be protected, but the information presented will not be a copyright work. It could've taken you decades of meticulous work, however that it itself doesn't not make it protectable.

The law has moved on from Feist, often taking smaller or larger leaps, but the case still remains at the heart of copyright law, having influenced both US and foreign cases even today. If monopolies were allowed in raw data, a lot of the things we have right now could not be possible, and this would clearly impact modern applications of phone directories and such on the Internet. The disapproval of the sweat of the brow principle was a logical change in the law going forward and has enabled innovation through the use of data in other applications.

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