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Creation and Commercial Value: Copyright Protection of Works of Information

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Creation and Commercial Value: Copyright Protection of Works of Information Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 1990 Creation and Commercial Value: Copyright Protection of Works of Information Jane C. Ginsburg Columbia Law School, [email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Intellectual Property Law Commons, and the Property Law and Real Estate Commons Recommended Citation Jane C. Ginsburg, Creation and Commercial Value: Copyright Protection of Works of Information, 90 COLUM. L. REV 1865 (1990). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/59 This Article is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. CREATION AND COMMERCIAL VALUE: COPYRIGHT PROTECTION OF WORKS OF INFORMATION* Jane C. Ginsburg** TABL OF CONTENTS Introduction .................................................. 1865 I. Copyright Protection of Informational Works: An Historical Perspective .................................... 1873 A. Laborious Authorship ................................ 1875 B. Individuality and Authorship ......................... 1881 C. Personality, Information, Investment, and Technology 1888 II. Informational Works in Contemporary Copyright Analysis. 1893 A. Subject Matter ....................................... 1895 B. Scope ............................................... 1901 C. Information and Incentives ........................... 1907 1. Economic Arguments for a Broad Scope of Protection for Low Authorship Works ............. 1907 2. The Fallacy of the Fact-Expression Distinction ..... 1913 III. A Copyright Law for Low Authorship Works .............. 1916 A. Alternative 1: No Copyright Liability ................. 1918 B. Alternative 2: Full Copyright Liability ................ 1922 C. Alternative 3: Compelled Collective Licensing of Derivative Information Compilations ................. 1924 1. Justifications for Compulsory Licensing ............ 1925 2. Modifying the 1976 Act: Subject Matter to Which the License Would Apply ......................... 1927 3. Modifying the 1976 Act: Rights Subject to the License .......................................... 1930 4. Rate-Setting ...................................... 1932 5. Other Issues ..................................... 1935 Conclusion .................................................... 1936 INTRODUCTION In 1899, Augustine Birrell, a Victorian barrister, lamented: "The * Copyright @ 1990, Jane C. Ginsburg. ** Associate Professor of Law, Columbia University School of Law. B.A. 1976, M.A. 1977, University of Chicago; J.D. 1980, Harvard University; D.E.A. 1985, Univer- sity of Paris. Research for this article was supported in part by the Columbia Law School Summer Research Grants program. Many thanks to my colleagues Vince Blasi, Victor Goldberg, Jack Kernochan, and Henry Monaghan, and to Douglas Baird, Stan Besen, Robert Gorman, Jessica Litman, Leo Raskind, George Spera, and Lloyd Weinreb for extensive comments on previous drafts. 1865 1866 COLUMBIA LA W REVIEW [Vol. 90:1865 question of copyright has, in these latter days, with so many other things, descended into the market-place, and joined the wrangle of con- tending interests and rival greedinesses."I Birrell's remark conveys distaste for those authors who would "realise the commercial value of their wares."' 2 But the question of copyright has always been joined with that of commercial value. Indeed, by affording authors limited monopoly protection for their writings, our Constitution relies on wrangling greed to promote the advancement of both creativity and profit.3 Nonetheless, the distinction Birrell implies between copyright- worthy works of authorship and mere commercial "wares" pervades much modem copyright law. Modem copyright comfortably embraces works manifesting a per- sonal authorial presence. Protection depends on whether the work manifests authorial personality, not whether that personality demon- strates either taste or talent.4 On the other hand, modem copyright encounters far more difficulty accommodating works at once high in commercial value but low in personal authorship. The paradigm for this kind of work and its attendant problems is a compilation of factual information. 5 This Article examines the application of copyright law to personal- ity-deprived information compilations such as directories, indexes, and data bases-endeavors I shall collectively dub works of "low author- ship." I argue that the problems surrounding the inclusion of these works within the subject matter of copyright and the delineation of their appropriate scope of protection reflect a misguided-and increas- 1. A. Birrell, Seven Lectures on the Law and History of Copyright in Books 195 (1899). 2. Id. 3. See U.S. Const. art I, § 8, cl. 8 ("Congress shall have Power ...To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inven- tors the exclusive Right to their respective Writings and Discoveries"). A similar policy underlay the English Statute of Anne of 1710, titled "An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies," 1710, 8 Anne, ch. 19. See Ginsburg, A Tale of Two Copyrights: Literary Prop- erty in Revolutionary France and America, 64 Tul. L. Rev. 991, 998 (1990). From copy- right's inception in the United States, most copyrighted endeavors have occupied lowly dwellings in the market place of informational works. See, e.g., Federal Copyright Records 1790-1800, at xxii (J. Gilreath ed. 1987); Ginsburg, supra, at 1002-05. 4. See, e.g., Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 250-52 (1903) (Holmes,J.); Original Appalachian Artworks, Inc. v. Toy Loft, Inc., 684 F.2d 821, 824 (11th Cir. 1982); Alfred Bell & Co. v. Catalda Fine Arts, Inc., 191 F.2d 99, 102-03 (2d Cir. 1951). 5. See, e.g., 1 M. Nimmer & D. Nimmer, Nimmer on Copyright § 3.04 (1990) [here- inafter Nimmer on Copyright] (one who discovers and discloses facts or public domain documents is not an "author"); Patterson &Joyce, Monopolizing the Law: The Scope of Copyright Protection for Law Reports and Statutory Compilations, 36 UCLA L. Rev. 719, 759-64 (1989) (inquiring whether page numbers in law reports "express[ ] the 'unique personal reaction' of the compilation author upon the subject matter" (quoting Bleistein, 188 U.S. at 250)). 1990] PROTECTION OF WORKS OF INFORMATION 1867 ingly untenable-attempt in United States copyright law to impose a unitary, personality-based concept of copyright. Itself a product of the late nineteenth century, the personality concept of copyright contin- ues-often subconsciously, but certainly pervasively-to inform our ideas about copyright today, too often to the exclusion of competing models of copyright. 6 But a unitary concept of copyright is neither faithful to earlier copyright history, nor well adapted to contemporary technologies of creation and copying of informational works. The problems begin with copyright law's designation of "original works of authorship" as the subject matter of protection. 7 The early history of copyright coverage indicates that this designation includes works of little personal authorship yet considerable expenditure of la- 8 bor and capital. But9 the unitary personality concept suggests that "original authorship" describes only those works manifesting a subjec- tive authorial presence. The prevalent contemporary understanding identifies authorial subjectivity as the hallmark of original works of au- thorship: original works reflect the personalities of their authors or, at the very least, embody their creators' subjective choices in the selection or arrangement of material.10 6. See, e.g., Financial Information, Inc. v. Moody's Investors Serv., Inc., 808 F.2d 204, 207 (2d Cir. 1986), cert. denied, 108 S.Ct. 79 (1987); Eckes v. Card Prices Update, 736 F.2d 859, 862-63 (2d Cir. 1984); authorities cited supra note 5. 7. United States Copyright Act of 1976, 17 U.S.C. § 102(a) (1988). 8. See infra notes 34-52 and accompanying text. 9. This Article addresses original authorship as a single concept. Some authorities separate the two terms, treating "originality" as meaning independent generation (not copied), and "authorship" as referring to some minimal level of creativity. See, e.g., Patry, Copyright in Collections of Facts: A Reply, Comm. & L., Oct. 1984, at 11, 19 (and sources cited therein); Comment, Originality and Creativity in Reporter Pagination: A Contradiction in Terms?, 74 Iowa L. Rev. 713, 716-18 (1989). I concur with other au- thorities in pairing the two terms. See, e.g., Trade-Mark Cases, 100 U.S. 82, 94 (1879) (declaring that a writing in the constitutional sense must be original: "[W]hile the word writings may be liberally construed... to include original designs for engravings, prints, &c., it is only such as are original, and are founded in the creative powers of the mind. The writings which are to be protected are the fruits of intelectual labor .... ); G. Curtis, Treatise on the Law of Copyright 169 n.1 (Boston 1847) ("The statutes both in England and America make use of the word Author, which ixvi termini imports originality, to some extent."). 10. See, e.g., Financial Information, Inc. v. Moody's Investors Serv., Inc., 808 F.2d at 207-08; Eckes
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