Raw data is not open to copyright, but databases, as compilations of data, have been treated differently. Early legal interpretations respected the compiler’s work under the “sweat of the brow” doctrine, until the Supreme Court ruled in 1991 that a modicum of creativity was required to earn copyright protection. The Court also ruled the International News Service infringed on the rights of the Associated Press (AP) by telegraphing news gathered by its competitor, and that the AP’s work was protected under state law through the “misappropriation doctrine.” The case was the basis of a 1997 case in which the National Basketball Association sued Motorola for transmitting real time game data by pager, making the defendant a competitor in providing the service. Databases must select, coordinate and arrange data with some creativity to earn copyright protection, and database producers use carefully worded contracts to protect their works. Librarians must be aware of copyright and contract details for databases and the scholarly use of data therein.
Data and Copyright
by Cindy Kristof
This article is not intended as legal advice. Please consult an attorney for your legal needs.
Any curious person frequently sees a wondrous world filled with as yet undiscovered knowledge. This knowledge is made up of smaller bits we call data. For researchers, data are essential to their work. They are identified, counted and categorized. Later, they can be interpreted or applied. Sometimes, this knowledge results in a deep level of understanding called wisdom. This idea is expressed in the familiar DIKW pyramid (Rowley). This column focuses on the elements that make up the very bottom of that pyramid: data.
What the Copyright Law Says
In Section 102 (a) and (b) respectively, the United States Copyright Law describes what is and isn’t protected by copyright law. Copyright protects “…original works of authorship fixed in any tangible medium of expression.” Copyright protection, however
…does not 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.
In other words, the data from which original works are created is not copyrightable. Data is not created; data is discovered.
In itself, raw data is not an original work of authorship. The law, however, has handled copyright protection of collections of data – or databases – in different ways throughout the last 200+ years. Section 101 of the Copyright Law defines a compilation as
…a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.
The term compilation includes collective works.
In the 19th century, compilations were protected by copyright under what is known as the “sweat of the brow” doctrine. The compiler’s efforts were taken into account; likewise, the infringer was seen as having “appropriated the labors” of the compilers. (For example, see Emerson v. Davies and West Pub. Co. v. Lawyers’ Co-operative Pub. Co.) Later court decisions evolved so that creativity was seen as being a component of originality, and the 1976 Copyright Act, which contains the current definition of a compilation, made the “sweat of the brow” doctrine less viable. The definitive case was the 1991 Feist Publications, Inc. v. Rural Tel. Serv. Co. in which the Supreme Court ruled that the white pages of the phone book did not meet the requirements for copyright protection. They simply weren’t “selected, coordinated, or arranged” in an original enough way, with a “modicum of creativity.”
“Hot News” Limitations: INS and the NBA
During World War I, the International News Service (INS) read hot news stories from the East Coast of the United States in order to telegraph the news to the West Coast. The Associated Press (AP) argued that this practice violated their property rights to the news they had gathered and collated. The Supreme Court ruled that the AP did have rights to its news, given that their function was to accurately and promptly disseminate news, and that INS was in direct competition with AP. This case thus resulted in what is called the “misappropriation doctrine” in which data otherwise not protected by copyright under federal law could be protected under state law. This misappropriation survives “copyright preemption,” in which federal law preempts any contradictory state laws.
The INS case was drawn upon in 1997 when the NBA sued Motorola for misappropriation under New York state law. In this case, Motorola and STATS, Inc., collaborated to transmit real-time sports data via pagers. A new test for an “INS-like misappropriation” claim was formulated:
- Plaintiff generates or gathers information at cost;
- The information is time-sensitive;
- Defendant’s use of the information constitutes free-riding on the plaintiff’s efforts;
- Defendant is in direct competition with a product or service offered by the plaintiffs; and
- The ability of other parties to free-ride on the efforts of the plaintiff or others would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened. (NBA v. Motorola)
The court emphasized that events such as basketball games themselves are not copyrightable, but news broadcasts about them are. Though INS-like misappropriation claims will survive copyright preemption, broader misappropriation claims will be preempted.
Because of the Feist ruling, databases are not protected as a compilation under copyright unless there is a “modicum of creativity” in selection, coordination and arrangement. Therefore, database producers typically protect their wares with contracts, which are enforced by state law. Courts have upheld these contracts, ruling that they are not preemptive. Although there have been exceptions, the “courts generally find that since a breach of contract claim requires proof that the parties involved entered into a contract, the contract claim is not the equivalent of any of the exclusive rights provided under the Copyright Act and therefore is not preempted.” (See Tysver .)
It is necessary to know what a license contract says about the use of a database, both before entering into the agreement in the first place and before extracting data for use in research and publication. A database with an overly restrictive license may not be useful, so librarians have a primary responsibility to evaluate and negotiate licenses that will prove useful to researchers. Bear in mind that data may be available from a variety of alternative sources.
In the End
Copyright protects original expressions of ideas. Facts themselves are not subject to copyright, but the creative expression that frames them is. Aside from the specific limitations of “hot news” and licensed sources, these data building-blocks – statistics, dates, weights, measurements, facts and ideas – remain uncopyrightable under United States law. This status also helps to “promote the progress of science and the useful arts” as set forth in the Constitution and enables authors, researchers and creators to produce knowledge – and perhaps even allows wisdom to flourish.
Rowley, Jennifer. (April 2007). The wisdom hierarchy: Representations of the DIKW hierarchy. Journal of Information Science, 33(2), 163-180.
U.S. Copyright Office. Copyright Law of the United States of America and related laws contained in Title 17 of the United States Code: Circular 92. Retrieved from www.copyright.gov/title17/92chap1.html).
Database and Collections of Information Misappropriation Act of 2003. Hearings before the Subcommittee on Courts, the Internet, and Intellectual Property Committee on the Judiciary and the Subcommittee on Commerce, Trade and Consumer Protection , Committee on Energy and Commerce, United States House of Representatives, 108th Congress, 1st Session, September 23, 2003, Statement of David O. Carson, General Counsel, United States Copyright Office). Retrieved from www.copyright.gov/docs/regstat092303.html
Tysver, Daniel A. Database legal protection. Bitlaw.com. Retrieved from www.bitlaw.com/copyright/database.html.
University of Michigan Library. Copyright Office. (March 25, 2013). Exceptions to copyright: Facts and data. Retrieved from www.lib.umich.edu/copyright/facts-and-data
Cases Mentioned in the Article
West Pub. Co. v. Lawyers’ Co-operative Pub. Co.: http://fairuse.stanford.edu/case/west-pub-co-v-lawyers-co-operative-pub-co/
Emerson v. Davies: http://fairuse.stanford.edu/case/emerson-v-davies/
Feist Publications, Inc. v. Rural Telephone Service Co.: http://fairuse.stanford.edu/case/feist-publications-inc-v-rural-telephone-service-co/ and https://supreme.justia.com/cases/federal/us/499/340/
International News Service v. Associated Press: http://fairuse.stanford.edu/case/international-news-service-v-associated-press/
National Basketball Association v. Motorola, Inc.: http://itlaw.wikia.com/wiki/NBA_v._Motorola
Cindy Kristof is associate professor and head, Copyright and Document Services at Kent State University Libraries. She can be reached at firstname.lastname@example.org.