Copyright and Its Alternatives
Edited by Robert F. Brauneis
Chapter 1: Feist, Facts and Functions: Historical Perspective
Miriam Bitton1 INTRODUCTION The 1990s brought significant developments in the field of information technology. These in turn stimulated the creation of a new global market for electronic information services and products, a market that is occupied substantially by electronic databases. The emergence of these new technological developments challenged many branches of the law, including intellectual property law. A particularly prominent part of this debate is how the law should address the protection of electronic databases. The debate over database protection in the United States can be traced back to the Supreme Court’s seminal decision in Feist Publications, Inc. v Rural Telephone Service Co.2 In Feist, the Court found white pages telephone directories to be non-copyrightable. The Court held that the touchstone for copyright protection is creative originality, and that this requirement is constitutionally mandated. The Court’s decision also clarified that its holding ‘inevitably means that the copyright in a factual compilation is thin. Notwithstanding a valid copyright, a subsequent compiler remains free to use the facts contained in another’s publication to aid in preparing a competing work, so long as the competing work does not feature the same selection and arrangement.’3 Feist thus ended the tradition in some courts of providing copyright protection based on the labor invested in creating the work and declared the death of the ‘sweat of the brow’ and ‘industrious collection’ doctrines. 1 Assistant Professor, Bar-Ilan University Faculty of Law, Israel; LL.B., M.A., Bar-Ilan University Faculty of Law, Israel; LL.M, S.J.D., University of Michigan Law School;...
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