graham97-ga,
Copyright questions are almost always frustrating, because the answers
-- by necessity -- are almost always murky.
The answer to your question is....it depends!
First off, please be aware of the disclaimer at the bottom of the page
-- Google Answers is not a substitute for professional legal advice.
The assertion in your question is correct...up to a point. Common,
everyday facts are not copyrightable. If Publisher A produces a
calendar with the birthdays of all US Presidents, there is nothing to
prevent Publisher B from taking those very same facts, and printing a
calendar of their own. The design and text of the calendars are each
protected by copyright, but the factual content about Presidents'
birthdays is not.
A statement of this aspect of copyright can be found at the US
Copyright Office's FAQs page:
http://www.copyright.gov/circs/circ1.html#wnp
What Is Not Protected by Copyright?
...Works consisting entirely of information that is common property
and containing no original authorship (for example: standard
calendars, height and weight charts, tape measures and rulers, and
lists or tables taken from public documents or other common sources)
The emphasis here is on "common" facts. The courts have ruled that
such common facts extend as far as phone book listings -- one may copy
all the names and address listings in the phone book without
infringing on copyright:
http://www.bitlaw.com/source/cases/copyright/feist.html
Feist Publications, Inc. v. Rural Telephone Service Company, Inc
...In Feist, the Supreme Court rejected the "sweat of the brow"
doctrine that provided copyright protection for databases and
compilation based upon the effort use to created the compilation.
Instead, the court decided that compilations and databases are
protected by copyright only when they are arranged and selected in an
original manner. Although the level of originality needed is not very
high, the white pages of a phone books are not protectable because the
selection of the data (all customers in a geographic area) and the
arrangement of the data (in alphabetical order) were not sufficiently
original as to come under the protection of the Copyright Act.
HOWEVER, the non-copyright status of factual information is probably
not absolute. There have been very few court cases that have examined
the issue beyond the boundaries outlined by Feist. Currently, under
US case law, I do not believe it is clear whether facts such as you
asked about -- industry benchmark data -- are or are not protected by
copyright.
If the benchmark data in question are from, say, the US Department of
Commerce, then of course, they are in the public domain, and available
for anyone to use.
If, on the other hand, the data results from a proprietary survey of
industry executives and are published in a pricey market-research
report, then their status under copyright law is far less clear, but
they may well be protected.
The key to copyright protection has to do with 'creativity' -- only
creative acts are protected. The courts have thus far ruled that
amassing facts isn't all that creative. But one can certainly see
instances where creating facts is, indeed, a creative process, such as
scientific or economic research, or conducting surveys and polls.
The status of these types of facts under the law is unclear.
An interesting read on the facts-and-creativity nexus is this case:
http://www.law.cornell.edu/copyright/cases/158_F3d_674.htm
BENDER v WEST PUBLISHING
The courts held that compiling facts of court cases was NOT especially
creative, thus, not protected by copyright. But the case (to my
reading of it) leaves the door wide open with respect to other bodies
of facts, especially those created by research, rather than simply
compiled and published.
Importantly, even if the facts are NOT copyrightable, they may be
protected by other aspects of the law. Facts presented in a report or
via a website are often covered by a license agreement to the effect
that, users may not re-publish the data without first obtaining
permission.
Even in the absence of such a license, cases have been made in courts
that large-scale use of published data amounts to an unfair business
practice, and constitutes "misappropriation" of business property.
This cease-and-desist letter is one example of this:
http://www.chillingeffects.org/derivative/notice.cgi?NoticeID=3790
Re: Misappropriated Third Party Data
...Your use of the misappropriated data in the production of reports
on the web site is a violation of AXIS' legal rights...we believe you
are wilfully infringing our rights under federal and state law and
could be liable for statutory damages.
Note the reference to "state law". The fact that individual states
have their own intellectual property laws that augment federal laws
such as the Copyright Act is a fact of life that greatly complicates
matters, and again, makes it very difficult to provide a clear-cut
answer to yhe question you asked.
Bottom line:
--Facts that are readily available from numerous sources are pretty
much public property for anyone to use (though even here, there may be
some "hot news" limitations on how quickly such facts can be copied
and republished).
--Facts published in an open fashion, without user restrictions (e.g.
a book that includes facts from research that the author undertook)
may be okay to use, though I am not aware of any recent case law on
this particular situation.
--For facts that are subject to a user license, it is important to
read the license very carefully, as for the most part, these licenses
are worded to restrict use and republication of the information at
hand.
Like I said, this is murky territory. But I trust the information
here fully answers your question.
If there's anything else I can do for you, just let me know by posting
a Request for Clarification, and I'm at your service.
Cheers,
pafalafa-ga
search strategy -- Used bookmarked links to copyright resources. |
