By Guthrie, Lawrence, II
Information Outlook , Vol. 1, No. 11
In December 1996, the World Intellectual Property Organization (WIPO) considered several treaties on copyright. The one treaty that failed to pass muster concerned protection of databases. Consequently, the U.S. Copyright Office has prepared a report on legal protection for databases at the request of Senator Orrin Hatch, chair of the Judiciary Committee. The following is a condensation of that report.
Copyright protections for databases, or "compilations," in the U.S. have been protected since 1790 by the first U.S. Copyright Act, following two rationales: the "sweat of the brow" based on the compiler's effort; and the "creativity" of compiler's selection and arrangement. The 1976 Copyright Act defined "compilation" as requiring originality in selection and arrangement. However, the Supreme Court rejected the "sweat of the brow" argument in favor of creative originality. Specifically, in the case of Feast Publications, Inc. v. Rural Telephone Service (1991), the high court held that a white pages telephone directory was uncopyrightable because the compilation lacked sufficient creativity, regardless of the amount of work or "sweat of the brow" it took to compile it. The court also stated that the scope of protection for compilations is "thin" covering only the original elements of the compilation's selection, coordination, or arrangement. Since Feist, most cases have found compilations narrowly copyrightable.
The database industry has adopted three strategies to protect their compilations: 1) incorporating greater creativity into their databases, 2) relying on contracts or licenses, and 3) limiting access via technology.
The U.S. Copyright Office, whose authority extends to determining copyright-ability of "compilations" in databases, plies the test for originality required by the Feist decision. The Office registers most claims submitted for compilations.
In the International arena, databases are protected by the Berne Convention for the Protection of Literary and Artistic Works and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). Copyrightable databases would be protected by the WIPO Copyright Treaties which have proven controversial in the U.S. and have not yet been approved.
The European Union (EU) adopted a directive in March 1996 for database protection to be adopted in respective national legislations by January 1, 1998. It attempts to harmonize copyright protection for databases with a term of 15 years.
From March through June 1997, the Copyright office has held meetings with representatives of the library community, science agencies, educational groups, and database producers. These meetings concluded that 1) databases are vulnerable to copying, 2) individual facts should not be privately owned, 3) individuals should be free to obtain facts independently from original sources, 4) government databases should not be copyrighted, 5) science, research, education, and news reporting should not be harmed, and 6) substantial free copying for commercial, competitive purposes should not be allowed. …