The Labor of Authors
A common misperception of the law of
copyright, especially in the area of factual compilations, is that
it serves to protect the labors of the author.
Some court decisions, in fact, misapplied the copyright act of
1909, developing a new judicial theory to justify protection of
factual compilations. This theory, known as “sweat of the brow” or
“industrious collection,” in effect said that copyright was a reward
for the hard work that went into compiling facts.
The “sweat of the brow” doctrine was seriously flawed in
many ways. The most obvious was the extension of copyright
beyond selection and arrangement, which is the compiler's original
contribution, to the facts, themselves. Under the doctrine, the only
defense to infringement is totally independent creation where the
the facts in any copyrighted work could not be used by others unless
independently discovered or collected. “ ‘Sweat of the brow’” courts
handed out proprietary interests in facts and declared that authors
are absolutely precluded from saving time and effort by relying upon
the facts contained in prior works.
“In enacting the Copyright Act of 1976, Congress dropped the
reference to ‘all the writings of an author’ and replaced it with
the phrase ‘original works of authorship.’” This made the
originality requirement explicit, which Congress announced as
"merely clarifying existing law." (Feist)
The 1976 Act further identifies those specific elelments of
a work not eligible for copyright protection: “In no case does
copyright protection for an original work of authorship 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.” (Feist) This is “universally”
understood to also prohibit any copyright in facts. This
identification of specific elements not eligible for copyright
protection was declared by Congress to be a clarification of prior
law.
“Just as the copyright law does not protect ‘industrious
collection,’ it affords no shelter to the resourceful, efficient, or
creative collector.... The protection of copyright must inhere in a
creatively original selection of facts to be reported and not in the
creative means used to discover those facts.” (bellsouth) |
