3.1248 copyright (138)

Willard McCarty (MCCARTY@vm.epas.utoronto.ca)
Mon, 2 Apr 90 19:52:21 EDT

Humanist Discussion Group, Vol. 3, No. 1248. Monday, 2 Apr 1990.

Date: Sun, 1 Apr 90 22:57 EST
Subject: compilation copyright & new technology

I would like to address Christopher Donald's question on
copyright protection for modifications of material collected from
databases (in his case NEXIS). To refresh everyone's memory
about his project, he is taking headlines from news services and
newspapers obtained from the NEXIS database and coding them for
the actor, target, and type of action.

Protection of compilations is one of the most underdeveloped
areas of computer law and copyright law. The technology is light
years ahead of both the traditional case law and current

Traditionally, copyright law has rested on a limited
monopoly rationale (legal protection fostering an economic
incentive to further cultivate and propagate intellectual
endeavors). This rationale does not extend copyright law to
facts only their expression. To fall under the copyright law, a
work must be original (roughly, show an element of creativity)
and second it must be in a fixed, tangible form. In most
compilation cases, fixation is not an issue because the
information can be perceived. The federal copyright statute
includes works perceived with the aid of a machine (generally
accepted to include computers).

Defining originality has always been difficult for the
courts, but defining it with respect to compilations has proved
almost impossible. In fact there are three different definitions
that courts use depending on the jurisdiction: arrangement,
effort/industrious collection, and subjective selection. The
arrangement doctrine finds originality in the personality that an
author puts into the new compilation. However, a work will not
be protected if the compilation is a simple rearrangement of
another author's material. (The arrangement doctrine implies the
necessity for intellectual labor.) The effort/industrious
collection doctrine provides protection for works created by
expending effort or industriously collecting the information used
in the compilation. The third rationale for including
compilations under copyright law, subjective selection, derives
the originality element from the action of subjectively choosing
information to include in a compilation from a larger body of
knowledge. Courts impute originality/creativity in the act of
selection. Subjective selection does not apply to large,
comprehensive compilations, but rather small compilations derived
from larger ones.

Fair use doctrine and infringement rules control the scope
of copyright law. Generally, fair use allows users to work with
copyright materials as long as there is no copyright
infringement. Depending on the jurisdiction, infringement can be
avoided by using the original author's sources or arranging the
original author's work differently.

My general thesis here is that the current protection for
new compilations based on information collected from databases is
suspect at best and nonexistent at worst. The underlying
foundation of the doctrines used to extend copyright protection
to compilations is intellectual effort. In other words, there
must be an indication of thought used in constructing the
compilation. However, the advent of new software and database
technologies changes the presumption that a great deal of effort
went into making the new compilation. I would say that this does
not derogate the creativity of the compiling act (I remember
reading somewhere that creativity is the ability to see what is
there), but time can no longer be relied upon as evidence of
effort or thought.

Applying these ideas to Mr. Donald's NEXIS coding project,
one cannot definitely conclude that his compilation would be
copyright protected. Twenty years ago, he probably would have
been hand sorting through newspapers and other news sources to
come up with articles. Next he would have added the code and
with access to a computer, entered the data for later
manipulation. These actions probably would have been enough to
extend copyright protection to the compilation. Now, this
element of effort cannot be found. A program to add the codes
after another program parses the sentences into the active voice,
as Mr. Donald suggests, would make the problem more acute. Work
that would have taken months twenty years ago, now can be done in
a matter of minutes. Common sense dictates that all of the
effort garnered in coming up with the idea and gathering the
resources to complete the project warrants copyright protection.
The courts would probably have a more difficult time coming to
this conclusion.

Such contradictions between reality and the law do not end
with Mr. Donald's project. For example, text markups are
commonly used by legal types and humanists alike. How should
these be handled? As happens very often, scholars translate
literature into other languages with markups discussing the finer
points of the translation and other relevant points. If another
scholar using several translations accessible in different
databases (or even the same one), creates a new translation
compilation by sorting different portions of the marked-up
translations using software that the second scholar directs, has
he created a new work with originality sufficient to create a
legally protectable copyright? Proliferation of texts on CD adds
another dimension to the problem. Twenty years ago, the compiler
would have had to obtain different books from different sources
and spend months or years comparing the works to create a
compilation. The courts probably would have seen copyright
protection in the effort. The same work can now be completed in
hours or minutes. Should copyright extend? Who should decide?
The courts? Congress? While suggesting that Congress might come
up with a solution to such a complex problem may sound like a
contradiction in terms, the courts may be no better equipped to
decide because they lack the technological background and

Consider Willard McCarty's idea of a perfect servant who
will take an exact description of what we want to receive (i.e.
our self definition) and filter the input from our electronic
organs of perception. This concept is merely an extension of
software and technology that is already available. Should this,
a compilation of our own reality, be copyrightable? As described
above, copyright extends protection to the expression of facts,
not the facts themselves. Would such a computer's perception of
the world be a fact or an expression of fact? Would copyright
protection of the self in the form of a computer program create a
market where we could buy and sell each other's reality in the
hope of finding a better one?

I am working on these ideas for publication. Any thoughts,
criticism, or comments would be greatly appreciated.

James M. Kanski (KANSKI@CWRU)