Debate Continues Over Scope of Copyright Protection for Databases

One controversial amendment to the U.S. Copyright law required by U.S. adherence to the 1996 World Intellectual Property Organization (WIPO) Treaty was not enacted in 1998 despite its initial appearance in the bill that became the Digital Millennium Copyright Act (DMCA). A provision to extend copyright protection in databases was dropped from the DMCA at the last minute.

Database protection was limited by the U.S. Supreme Court's 1991 decision in Feist Publications, Inc. v. Rural Tel. Serv. Co. The Court in Feist held that a telephone company's copyright in the "white pages" directory did not extend to names, towns and telephone numbers. The Court held that since the pre-existing factual material did not owe its origin to the plaintiff, copyright protection required a demonstration of originality in the selection, coordination or arrangement of the data. The simple listing of subscribers to the plaintiff's telephone service in alphabetical order by surname was not creative and therefore failed to meet the minimum standard of originality required for copyright protection. Under Feist, the "white pages" were no longer a protectable database.

Feist struck down the "sweat of the brow" doctrine, which some courts had used to find copyright protection in databases created by the industrious efforts of their authors. Under Feist, no amount of effort or expense incurred in creating a database will bring about copyright protection unless the database is original in its selection, coordination, or arrangement.

WIPO and the European countries have always disagreed with Feist. In 1993, the European Community implemented a directive to recognize the copyright protection in databases excluded by Feist. The 1996 WIPO Copyright Treaty obligates its members, including the U.S., to recognize such copyright protection.

A provision to restore database protection was dropped at the last minute over objections by members of the scientific and educational community complaining about abridgements to fair use. The issue will be taken up by the new Congress.