Copyright law is the primary vehicle for legally protecting databases. However, not all databases are protected by copyright.
Databases Are Compilations or Collective Works
The individual bits of data contained in many databases are not entitled to copyright protection on their own. For example, names and addresses or numerical data may not qualify for copyright in their own right. But the way the database creator selected and arranged all these bits of data may constitute an original work of authorship protected by copyright. In other words, the individual materials contained in a database may not be entitled to copyright protection, but the selection and arrangement of the entire database may be. This type of database is called a fact compilation. However, many databases contain items that qualify for copyright protection on their own—for example, a database containing the full text of copyrighted articles. This type of database is a collective work. A collective work is a special type of compilation. It is a work created by selecting and arranging into a single whole work preexisting materials that are separate and independent works entitled to copyright protection in their own right. Also, as with fact compilations, there may be copyright protection for the selection and arrangement of the materials making up a collective work.
Of course, some databases contain both protectible and unprotectible material, and are therefore both fact compilations and collective works.
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Database Selection and Arrangement Constitutes Protected Expression
Why should any compilation be protected by copyright? The author of a compilation does not really create anything new, he merely selects and arranges preexisting material; so what is there to protect? For example, say that you compile an electronic database listing the 1,000 baseball cards you consider most desirable for collectors listed in order of desirability. What makes such a database would have to employ in deciding which of the thousands of baseball cards in existence belong on your list of the 1,000 most desirable cards and deciding in what order the names should appear on the list. It is this selection and arrangement of the material making up a compilation that constitutes protected expression.
The copyright in a protectible fact compilation or collective work as a whole extends only to this protected expression— that is, only to the compiler’s selection and arrangement of the preexisting material, not to the preexisting material itself. Of course, the individual items in a collective work may be copyrightable themselves.
Minimal Creativity Required for Protection
A work must be the product of a minimal amount of creativity to be protected by copyright. This requirement applies to fact compilations as well as all other works. The data contained in a factual compilation need not be presented in an innovative or surprising way, but the selection or arrangement cannot be so mechanical or routine as to require no creativity whatsoever. If no creativity was employed in selecting or arranging the data, the compilation will not receive copyright protection.
Is the arrangement of the data creative?
Famed “information architect” Richard Saul Wurman, in his book Information Architects, points out that there are only six ways to arrange data. You may use
- category, or
Common sense tells us that of these six methods only location, category, and hierarchy can require minimal creativity and can be protected by copyright. No creativity is involved in arranging a database by alphabet, time, or number. These types of organization are purely mechanical--that is they require no exercise in judgment. You just have to know how to tell time, or count, to arrange a database by these methods.
Is the selection of the data creative?
The selection of the data in a database satisfies the minimal creativity test only if the compiler has:
- chosen less than all of the data in a given body of relevant material, regardless of whether it is taken from one or more sources, and
- the selection is based on the compiler’s opinion about something.
For example, no selectivity is required to compile a directory of all the restaurants in New York City. The compiler of such a directory need not employ any judgment in deciding which restaurants belong in the directory. But a list of the 100 “best” restaurants in New York City is protected by copyright. Here, the compiler must use selectivity and judgment in deciding which 100 of the thousands of restaurants in New York City are “best.”
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