The protection of the data and the arrangement of that data is one of the hot button issues facing the Internet.  Indeed, these issues go beyond the Internet since databases are essential components of much of our lives as a society as a whole.  Those that create and those that use databases (in the latter category it probably includes most of us at one time or another) should have some sense about the respective legal issues in this area of intellectual property law.


        In most instances, the actual facts contained in any database are free for all to use.  Facts generally are in the public domain and in such instances, there is no copyright protection for the facts.  This does not mean that in all instances you are free to copy facts.  Often there may be claims made that certain facts are proprietary and you should check those claims out to determine whether or not a license is appropriate or whether they are otherwise protected.  However, the threshold question for the copyright protection of the database is whether or not the arrangement of the public domain information is sufficiently original, under the standards of the copyright law, to warrant copyright protection.

        The United States copyright act states in part:

           Copyright protection subsists, in accordance with this title, in original works of authorship….

        The threshold for originality is quite low but must still exist in some recognizable fashion to warrant protection.  To the extent any non-factual elements are involved, such as design elements, they may be protectable by copyright.  I do not deal in this article with issues related to patentability of databases or the programs containing the same.  Those issues raise many other legal questions.


        The main case in this area is Feist Publications, Inc. vs. Rural Telephone Service Co. Inc., decided in 1991.  At issue was whether the copying of telephone book listings, the data, was an infringement of the copyright existed in the arrangement of that data.  The claim was that even though the data might otherwise fall outside of the protection of the copyright law, the arranger of that data was entitled to protection because of the time and energy expended in doing the arrangement, in this instance the telephone book listings.

        The Supreme Court said that the so-called “sweat of the brow” legal theory of protection was not a valid legal theory.  The Court referred to the United States Copyright Act of 1976, section 102 (b), which states:

“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.”
        Thus the general rule is that if the data is not protectable, neither is the mere compilation of that data, whether in a database or otherwise, unless the compilation also satisfies the requirements of the copyright law.  This latter phrase is important since if the arranger can show that the particular arrangement contains sufficiently original ideas, that particular arrangement might be protected under the copyright law.


        It thus appears that the predominate line of legal authorities do not favor the protection of databases, at least under the theory of copyright.  There may be other theories that may be useful to the creator of such materials such as trespass, unfair competition, contract rights (if the parties had a contractual relationship) and the like but whether these would apply depends on the facts of the given situation.

© 2001 Ivan Hoffman


This article is not intended as a substitute for legal advice.  The specific facts that apply to your matter may make the outcome different than would be anticipated by you.  You should consult with an attorney familiar with the issues and the laws.
No portion of this article may be copied, retransmitted, reposted, duplicated or otherwise used without the express written approval of the author.



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