By Scott Hervey
Under contemporary Copyright Law, a database is a “compilation.” A compilation is defined under the Copyright Act as “a work formed by the collection and assembling of preexisting materials or of data….” While the inclusion of a compilation as a protectable work was statutorily introduced in The Copyright Act of 1976, compilations were protected as “books” as early as the Copyright Act of 1790.
In 1991 in Feist Publications, Inc. v. Rural Tel. Serv. Co, the Supreme Court resolved a split among the circuits regarding the elements of a compilation that entitle it protection under the Copyright Act. Certain circuits had adopted what was known as the “sweat of the brow” doctrine which looked at the compiler’s effort – his own expense, skill, labor or money – as the critical contribution justifying protection. Other circuits moved away from the labor/investment approach of the sweat of the brow doctrine, and granted protection to those compilations that were sufficiently original to be considered protectable works of authorship.
In Feist, the United States Supreme Court held that an alphabetical telephone directory of all people living in a particular area lacks sufficient originality and, therefore, was not copyrightable. This decision ended grants of protection based solely on the compiler’s own effort. In addressing the issue of the protectability of compilations of facts, understanding the practical implications of its decision, the court stated:
“[This decision] inevitably means that the copyright of a factual compilation is thin, not withstanding a valid copyright, a subsequent compiler remains free to use the facts compiled 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.”
Although copyright protection for a database may be “thin,” protection still exists. While the data itself, in most cases, escapes protection under copyright, protection is granted to the selection and arrangement of the data. The 11th Circuit recently reminded us that, although thin, copyright protection for a compilation of factual data is alive and well.
In BUC International Corp., v International Yacht Council Limited, the 11th Circuit addressed the plaintiff’s claim that the defendant infringed certain elements of its yacht listing service. The plaintiff obtained information about yachts for sale from yacht brokers, who would fill out a form which plaintiff had created. This information was then compiled into a listing database, searchable by a variety of yacht characteristics and features. The plaintiff made the yacht listing database available to brokers pursuant to a license.
In June of 2000, the defendant began taking steps to create an online multiple listing service which would compete with plaintiff’s service. Like the plaintiff, the defendant solicited listings from brokers. Many of these brokers were licensees of plaintiff’s service. In sending listings to the defendant, many of the brokers would simply copy the listing they had submitted to the plaintiff and the defendant would, in turn, place the listing on its website. Additionally, the defendant had surreptitiously secured passwords to the plaintiff’s service and culled and posted listings, word for word, directly from plaintiff’s service.
On appeal from a district court’s judgment of infringement, the 11th Circuit, discussed Feist and its progeny, and its application to the instant case. With regard to compilations of fact, the court noted that it is the “creatively original selection of facts” that garners protection; the standard for copyright infringement of factual compilations hinges on distinguishing original elements of creative authorship from components in the public domain.
Not all changes or additions to a public domain work is substantial enough to be considered original. In the 2nd Circuit case of Matthew Bender and Company v. West Publishing Company, the court addressed whether the changes West made to the text of federal judicial opinions, namely the "star pagination" feature, was copyrightable. The court found that the changes were insubstantial, unoriginal and uncreative and, therefore, not copyrightable. In coming to this conclusion, the court noted that most of West’s choices were "inevitable, typical, dictated by legal convention, or at best, binary."
In BUC International, the 11th Circuit considered the way in which the plaintiff selected, categorized, and presented certain factual information about yachts listed for sale, and determined that this was entitled to protection under the Copyright Act. And while the defendant may have been entitled to the underlying information, it could not arrange, organize or display this information in a manner that was substantially similar to the way in which plaintiff arranged, organized and displayed the same information. Because the defendant listed the data in the exact same way, and in the exact same manner as plaintiff, the 11th Circuit upheld the trial courts finding of infringement and a damage award in excess of one million dollars.
While this case does not offer a new twist on Feist, it does serve as a good reminder of the extent of protectability of factual complications. Under Feist a third party may copy and freely use any factual information contained in a database, as long as the third party does not use the same selection and arrangement.