If the compilation consists of underlying material that is in the public domain, such as facts, the facts are not protected. Here copyright protection exists, if at all, in the particular selection or arrangement, not in the underlying content. For example, both Guinness World Records and The World Almanac and Book of Facts may record that Mt. Everest, at 29,035 feet, is the highest place on earth. The copyright owners of these two compilations cannot protect this information, nor any other facts in their almanacs. They may, however, copyright their works as compilations, where protection extends to the selection and arrangement of the facts in their respective publications.
Not all compilations may be copyrighted, however. Take, for example, the common white pages telephone directory. In Feist Publications, Inc. v. Rural Telephone Service,[1] the U.S. Supreme Court ruled that a garden-variety white pages telephone directory contained so little creativity in selecting, arranging or coordinating the unprotected underlying facts that it could not be copyrighted as a compilation. The Feist decision discredited what is called the “sweat of the brow” doctrine: effort alone will not make a work copyrightable. The Court made it clear that compilations require a certain level of creativity to be afforded copyright protection: the creator must exercise some skill and discretion in selecting and arranging the underlying information.[2]
Legislative efforts designed to effectively overturn the Feist decision have centered on database protection legislation. In the United States, such legislation was introduced in Congress, but never passed into law.[3] On the international front, although database protection legislation has not been enacted under the Berne Convention, a European Union directive creates sui generis protection of databases if there was a “substantial investment in either the obtaining, verification or presentation of the contents to prevent extraction and/or re-utilization of the whole or of a substantial part.”[4]
- ↑ 499 U.S. 340 (1991).
- ↑ “Thus, even a directory that contains absolutely no protectable written expression, only facts, meets the constitutional minimum for copyright protection if it features an original selection or arrangement.” 499 U.S. at 348.
- ↑ H.R. 3531, 104th Cong. (1996), H.R. 2652, 105th Cong. (1998), S. 2291, 105th Cong. (1998), H.R. 1858, 106th Cong. (1999), H.R. 354, 106th Cong. (1999), H.R. 3261, 108th Cong. (2003), H.R. 3872, 108th Cong. (2004).
- ↑ Legal Protection of Databases, Council Directive 96/9, 1996 O.J. (L 77) 20.
