Utilitarian Information Works - Is Originality the Proper Lens?

Article excerpt

ABSTRACT
INTRODUCTION
PART I
     A. Information, Utilitarian Information Works, and the
        Knowledge-Based Economy
     B. The Role of Information Works in the Knowledge-Based
        Economy
     C. The Critical Need for Information
     D. Possible Approaches to Re-Examining the Relationship
        between Copyright and Utilitarian Information Works
PART II
     A. Copyright Protection of UIW
        1. Standards for Protection Applied to UIW
           a. Standards in the United States
           b. Standards in Germany
           c. Limitations on Protectability Applicable to
              Functional Works
           d. Limitations on Protection in the United States
                i. The Idea-Expression Distinction
               ii. Exclusion of Ideas, Procedures, Processes,
                   Systems, and Methods of Operation
              iii. The Merger Doctrine
           e. Limitations on Protectability in Germany
PART III
     A. Copyright Law and Functionality
     B. The Tension between Originality and Functionality
        1. Constraints on Expression in UIW
           a. Inherent Constraints on Expression
                i. The "Most Effective Expression" Principle
           b. External Constraints on Expression
        2. Originality in Selection and Arrangement
           a. Selection
           b. Arrangement
        3. Originality in Judgment and Expertise
     C. Methodology--Use of Illusory Hypotheses as Evidence of
        Originality
     D. Ramifications of the Use of Faulty Methodology
     E. Authorship, Innovation, and Creativity
PART IV
CONCLUSION

INTRODUCTION

We live in an information society. Many of the most valuable assets in today's economy come in the form of information products. It has become the practice to claim copyright protection for virtually every piece of writing or its electronic equivalent, created by knowledge professionals--from the iPod version of train schedules (1) to instruction manuals for use of motorized saws (2) to spare parts numbering systems. (3) As a result, copyright law may be called upon to operate as gatekeeper to the very building block of our society--information.

This Article examines the tension between the mechanism by which copyright protection is evaluated and the utilitarian nature of works that serve the information society. It emphasizes the fact that copyright law encourages diversification through individuality, origin a I it v. and deviation from the routine, while the functional nature of utilitarian works dictates uniformity and conformity, rendering the individuality of authorial input irrelevant.

It is posited that evaluation of copyrightability through the lens of originality cannot capture the utilitarian functional nature of certain information works, even though utility is their raison d'etre. Originality further ignores the broader economic impact of protectability, which in a knowledge-based economy (KBE) is of critical importance. As a result, the use of originality as the sole standard for determining protectability risks obstructing the flow of information necessary for innovation, causes waste of resources, and adversely impacts competition.

PART I

A. Information, Utilitarian Information Works, and the Knowledge-Based Economy

Utilitarian information works (UIW) are products of human creative expression, whose raison d'etre is performance of concrete, useful functions. (4)

Despite their utilitarian nature, these works fall under the category of "literary" works under the Berne Convention (5) and "writings" under the U.S. Constitution. (6) Scholars and courts have always viewed such works as borderline protectable, placing them, at varying times, either above or below the protectability threshold. Yet, the issue has never received a great deal of attention, possibly because of its limited overall significance. …