bill@gauss.eedsp.gatech.edu (Bill Berbenich) (03/29/91)
Court Rules Phone Books Unprotected; Justices: Copyright Law Doesn't Apply
By Ruth Marcus
Washington Post Staff Writer
In a case closely watched by the fast-growing database publishing
industry, the Supreme Court yesterday ruled unanimously that there is
no copyright protection for telephone directory white pages.
The dispute before the court involved a publishing company, Feist
Publications Inc., that specializes in area-wide telephone
directories. Feist asked the Rural Telephone Service Co., which
operates in northwest Kansas, to purchase the right to use its local
listings in compiling its broader regional directory.
Rural refused, but Feist used the information anyway, copying at
least 1,309 names, towns and telephone numbers of Rural subscribers.
Rural then filed a copyright infringement suit.
A basic principle of copyright law is that facts themselves cannot
be copyrighted because they are not "original works of authorship."
However, compilations of facts can be copyrighted, under the 1976
copyright law, if they are "selected, coordinated or arranged in such
a way that the resulting work as a whole constitutes an original work
of authorship."
In an opinion by Justice Sandra Day O'Connor, the court said
telephone directories - which do nothing more than list subscribers in
alphabetical order - do not meet that test. "It is not only
unoriginal, it is practically inevitable," O'Connor said of this
arrangement. "This time-honored tradition does not possess the minimal
creative spark required by the Copyright Act and the Constitution."
O'Connor said a number of lower courts were wrong when they
decided compilations or other works were entitled to copyright
protection by a "sweat of the brow" test in which the amount of effort
that went into gathering the data is taken into account.
Originality, not effort, is the "touchstone of copyright
protection," she said, noting that copyright "is not a tool by which a
compilation author may keep others from using the facts or data he or
she has collected."
Justice Harry A. Blackmun concurred in the ruling but did not join
O'Connor's opinion.
The database publishing industry - companies such as financial
information systems, publishers of demographics statistics and credit
reporting services - had been concerned that the court would adopt a
definition of what constitutes a compilation that could strip
databases of copyright protection.
O'Connor assuaged some of those fears yesterday when she noted
that "the vast majority" of compilations would probably pass the test,
unlike the "garden-variety white pages directory, devoid of even the
slightest trace of creativity."
Steven J. Metalitz of the Information Industry Association, which
filed a brief in the case expressing the concerns of database
publishers, said the court was "right to find white pages on the far
end of a spectrum and to indicate that the vast majority of the things
in that spectrum were included in copyright. That, we think, would
include the vast majority of database collections."
But he said database publishers were concerned about the "thin"
protection O'Connor accorded to databases made of factual information.
He pointed, for example, to a case now before the federal appeals
court in San Francisco involving a commercial real estate publisher
who simply took the information that had been gathered by a competing
directory and rearranged it.
"Nothing can be harder in some cases than really compiling this
information in a way that's useful and nothing can be easier than
taking that information and reorganizing it. A computer can do that in
seconds."
Bill Berbenich Georgia Tech, Atlanta Georgia, 30332
uucp: ...!{backbones}!gatech!eedsp!bill Internet: bill@eedsp.gatech.edu
[Moderator's Note: I think we are witnessing the end of an era of
accurate, reliable telephone directories from the Bell telcos.
Obviously from this point forward instead of maintaining a detailed
and highly technical directory bureau, all telco needs to do is copy
some other directory and put their name on the cover each year. PAT]