Database Copyrights
By Edmund B. Burke
Sequence: Volume 30, Number 2
Release Date: March/April 1995
One question of continuing interest to users of computer technology concerns the extent to which computer databases may be protected by copyright. This question is important both to copyright owners, who want to maximize revenue from their databases, and to copyright users, who want to incorporate portions of databases into their own systems.
In legal terms the issue revolves around the extent of copyright in a compilation. A compilation is essentially a collection of facts that is ordered by logical principles set up by the compiler. The facts are not copyrightable; the ordering and organization by the compiler is. Around that delicate distinction hangs many a tale.
The Supreme Court decided the watershed case of Feist Publications v. Rural Telephone Service in 1991, which set the standards for later review for compilations. Feist marketed telephone directories that covered geographic regions wider than the region of any single telephone company. Feist asked for permission to use Rural's database, but Rural refused. Not willing to give up so easily, Feist copied (essentially verbatim and in its entirety) the telephone white pages which had been compiled by Rural. Rural sued for copyright infringement, claiming that while the names, addresses and telephone numbers of its subscribers were in the public domain, still the particular selection and arrangement of those names and numbers in its white pages was original and entitled to copyright protection.
The Supreme Court disagreed. It observed that a certain amount of originality is required for copyright protection. While the threshold is low, the Court noted, a phone company's white pages fail to satisfy even the minimal standards required. Thus, the wholesale copying by Feist of the telephone white pages was held to be lawful. Users (or copiers) of computer databases tended to take great
comfort in the Feist decision, on the theory that facts and even some elements of the structure from the database could likewise be copied and used without liability to the copyright owner. However, recent decisions from the Federal Courts of Appeal have indicated the narrow limits of the Feist decision.
In BellSouth Advertising v. Donnelley, the Eleventh Circuit Court of Appeals upheld the copyrightability of BellSouth's yellow pages. The Court held that the greater degree of selection and organization employed by the editors of the yellow pages, when compared to the editorial decisions for the white pages, created a copyrightable work of authorship for the yellow pages. These actions involved selecting and naming advertising categories, dividing the directory into those categories, and assigning businesses to different categories. These were all deemed original acts of authorship which distinguished the yellow pages case of BellSouth from the white pages case of Feist. Therefore, the claim of nfringement lodged by BellSouth against the copyist was upheld.
A similar case was recently decided by the highly respected Court of Appeals for the Second Circuit in New York. In CCC Information Services v. Maclean Hunter Market Reports, the Court of Appeals examined the copyrightability of Maclean Hunter's Automobile Red Book - Official Used Car Evaluations. The valuation figures assigned to different types of automobiles represented the editors' judgment of the value for vehicles, based on a wide variety of information and the professional judgment of the editors. CCC Information Services used the information from the Red Book, and incorporated that into a computer database. The information was "republished" along with other valuations from other sources. When customers of the Red Book began to cancel their subscriptions in favor of the CCC database, Maclean Hunter threatened the copyist with infringement, with the lawsuit close behind.
The trial court ruled that the Red Book was not copyrightable under the standards set by Feist, as it was nothing more than a compilation of unprotected facts, which were not organized according to any particular original thought. The appellate court disagreed, and noted that the trial court had established too high a barrier for originality as a condition of copyright protection. The originality requirement under copyright is minimal, the Court of Appeals stressed. Many courts, when considering database compilations in the future, will now follow the reasoning of the Red Book case and will probably find that those databases qualify as copyrightable.
The Court found that several indicia of originality could be found in the Red Book, including the division of the used car market into separate geographical regions, the manner of presentation of optional features, the adjustment for mileage (which was specified in 5,000 mile increments), and the use of the concept of an "average" vehicle. Although the Court recognized that the underlying facts themselves are not entitled to copyright protection, the copyist in the Red Book case was deemed to have taken more than facts. The selection of the categories and the other editorial decisions made by the Red Book authors were sufficient to create a copyrighted interest in the Red Book. The Court noted that, in cases of wholesale copying, courts should be willing to protect "soft ideas infused with taste and opinion" of the editors and compilers.
Many databases will pass muster as copyrightable under the rather liberal standards enunciated in BellSouth and Red Book. Therefore, database users should be careful about the extent to which database material is taken and incorporated into separate works and applications, especially if the copying is substantial and if little "re-organization" is done to the basic database. Although the defendants in BellSouth and Red Book were competitors of the copyright owner, it is important to recognize that competition is not a required element of copyright infringement and that non-competitors can be liable as well. However, if the work of a copyist competes with or displaces sales of the original database, even more caution is warranted, as the database owner will have a great incentive to assert a claim.
These "compilation copyright" decisions will obviously affect the brave new world of multimedia, in which a variety of sources are collected by a single compiler for preparation of a new copyrighted work. The complexities that will be involved in obtaining appropriate copyright clearance for such multifaceted works will be enormous. These court decisions will tend to increase the complexity of the clearance process, because creators of new works will be advised that they cannot with safety simply appropriate large portions of "factual" databases. We can expect to see new market-driven solutions for these problems, perhaps similar to the blanket licensing schemes used by ASCAP and BMI for musical licensing or to the voluntary clearance plan operated by the Copyright Clearance Center.
(Editor's Note: This article is provided for general information purposes only. Consult your attorney for an opinion about a specific case.)
Edmund B. (Pete) Burke is an attorney in the Corporate and Technology Practice Group at Powell, Goldstein, Frazer & Murphy, a law firm with offices in Atlanta and Washington, D.C.