Feist Publications v. Rural Telephone Service

Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991), commonly called just Feist v. Rural, was a United States Supreme Court case in which Feist copied information from Rural's telephone listings to include in its own, after Rural refused to license the information. Rural sued for copyright infringement. The Court ruled that information contained in Rural's phone directory was not copyrightable, and that therefore no infringement existed.

Background

Rural Telephone Service Company, Inc. was a telephone provider for areas in north-west Kansas. The company was under a statutory obligation to compile a phone directory of all their customers free of charge as condition to their monopoly franchise.

Feist Publications, Inc. specialized in compiling telephone directories from larger geographic areas than Rural. They had licensed the directory of 11 other local directories with Rural being the only hold-out in the region. Feist went ahead and copied some 4000 entries from Rural's directory. Rural, however, had placed a small number of phony entries to detect copying and caught Feist.

Prior to this case, the subsistence of copyright in United States law followed the sweat of the brow doctrine that gave copyright to anyone who invested significant amount of time and energy into their work. At trial and appeal level the courts followed this doctrine siding for Rural.

Ruling of the Court

The unanimous ruling of the Court was given by Justice O'Connor. It examined the purpose of copyright and explained the standard of copyrightability as based on originality.

It is a long-standing principle of United States copyright law that "information" is not copyrightable, O'Connor notes, but "collections" of information can be. Rural claimed a collection copyright in its directory. The court clarified that the intent of copyright law was not, as claimed by Rural and some lower courts, to reward the efforts of persons collecting information, but rather "to promote the Progress of Science and useful Arts" (U.S. Const. 1.8.8), that is, to encourage creative expression.

Since facts are purely copied from the world around us, O'Connor concludes, "the sine qua non of copyright is originality". However, the standard for creativity is extremely low. It need not be novel, rather it only needs to possess a "spark" or "minimal degree" of creativity to be protected by copyright.

In regard to collections of facts, O'Connor states that copyright can only apply to the creative aspects of collection: the creative choice of what data to include or exclude, the order and style in which the information is presented, etc., but not on the information itself. If Feist were to take the directory and rearrange them it would destroy the copyright owned in the data.

The court ruled that Rural's directory was nothing more than an alphabetic list of all subscribers to its service, which it was required to compile under law, and that no creative expression was involved. The fact that Rural spent considerable time and money collecting the data was irrelevant to copyright law, and Rural's copyright claim was dismissed.

Implications

The ruling has major implications for any project that serves as a collection of knowledge. Information (that is facts, discoveries, etc.), from any source, is fair game, but cannot contain any of the "expressive" content added by the source author. That includes not only the author's own comments, but also his choice of which facts to cover, his choice of which links to make among the bits of information, his order of presentation (unless it is something obvious like an alphabetical list), any evaluations he may have made about the quality of various pieces of information, or anything else that might be considered "original creative work" of the author rather than mere facts.

For example, a recipe is a process, and not copyrightable, but the words used to describe it are; see Publications Int'l v Meredith Corp., 88 F.3d 473 (7th Cir. 1996). Therefore, you can rewrite a recipe in your own words and publish it without infringing copyrights. But if you rewrote every recipe from a particular cookbook, you might still be found to have infringed the author's copyright in the choice of recipes and their "coordination" and "presentation", even if you used different words, though the West decisions below suggest that this is unlikely unless there is some significant creativity in the presentation.

The text of US Laws is in the public domain, but Thomson West claims a copyright on the page numbers in its printed edition of those laws. By this reasoning, you could refer to a law or even include large excerpts with impunity, but if you reproduce it in such a way as to deliberately preserve West's page numbers, you might be in trouble. This copyright claim has been defeated in two court cases West v. Mead[http://showcase.netins.net/web/trhalvorson/law/799_f2d_1219.html (No. 85-5399 799 F.2d 1219)(1986) and Matthew Bender & Company, Inc., & Hyperlaw, Inc., vs. West Publishing Co (No. 97-7430).

The West claim of originality in the way it presented its reports of decisions has also been found to be uncreative and therefore not copyrightable, in Matthew Bender v. West Publishing Co. (158 F.3d 674) ^* (may be known as Hyperlaw, Inc. v. West Publishing Company, 94 Civ. 589 (SDNY 1997)).

Another case covering this area is Assessment Technologies v. WIREdata ^*, which ruled that a copyright holder in a compilation of public domain data cannot use that copyright to prevent others from using the underlying public domain data, but may only restrict the specific format of the compilation, if that format is itself sufficiently creative.

In the late 1990s, Congress attempted to pass laws which would protect collections of data, but these measures failed. By contrast, the European Union has a sui generis (specific to that type of work) intellectual property protection for collections of data.

Other countries

The applicability of copyright to phone directories has come up in several other countries.

In Canada, the appeal-level case of Tele-Direct (Publications) Inc. v. American Business Informations Inc. (1997) 76 C.P.R. (3d) 296 (F.C.A.) reached a similar result to that of Feist. However, the Supreme Court backed away from the originality doctrine in CCH Canadian Ltd. v. Law Society of Upper Canada.

In Australia, the Federal Court decision of Desktop Marketing Systems Pty Ltd v Telstra ^* FCAFC 112 followed the UK approach in Walter v. Lane and ruled that copyright law did in-fact follow the "sweat of the brow" doctrine.

Relation with treaties

Congress has been considering whether to implement a treaty negotiated at the World Trade Organization. Part of the Uruguay Round Agreement resulted in text which states, in Part II, Section 1, Article 10:

Compilations of data or other material, whether in machine readable or other form, which by reason of the selection or arrangement of their contents constitute intellectual creations shall be protected as such. Such protection, which shall not extend to the data or material itself, shall be without prejudice to any copyright subsisting in the data or material itself.

The text mirrors that of Article 2(5) of the Berne Convention, which applies to "collections of literary or artistic works".

This treaty provision is broadly in line with the United States Copyright Act and the Act's case law, which protects compilations of data whose "selection and arrangement" is sufficiently original. See 17 U.S.C. § 101 ("compilation" as defined by the United States Copyright Act includes compilations of data). The standard for such originality is fairly low; for example, business listings have been found to meet this standard when deciding which companies should be listed and categorizing those companies required some kind of expert judgement. See Key Publ'ns, Inc. v. Chinatown Today Pub. Enters., 945 F.2d 509 (2d Cir. 1991) (applying Feist). As such, implementation of this treaty would not overrule Feist.

References

United States Supreme Court cases | United States copyright case law | 1991 in law