Current Developments in Database Protection (Part 1 of 3)
Published By Res Ipsa Loquitur November/December 2005

With the growth of electronic commerce, the transaction costs of duplicating and transmitting electronic media, such as databases, have been significantly reduced. This transaction cost reduction has caused great concern among database developers. It may be possible, within minutes, for one to duplicate and transmit a database that may have taken years to create, causing significant economic harm to the database developer.

There are several avenues available for database developers to seek protection of databases and other factual compilations. Depending on the circumstances, U.S. Copyright laws, state contract laws, the Digital Millennium Copyright Act and the Doctrine of Misappropriation, or combination thereof, may provide adequate protection.

U.S. Copyright Protection
In Feist Publ’ns v. Rural Tel. Serv. Co, the Supreme Court defined the method for determining when compilations of fact deserve protection under U.S. copyright law.1 Rural Telephone Service Company, Incorporated (“Rural”) published a telephone directory, consisting of white pages and yellow pages.2 Rural obtained data for the directory from subscribers, who were required to provide their names and addresses in order to obtain telephone service from Rural. Earlier, Feist Publishers (“Feist”) attempted to obtain a license to publish the white pages of Rural’s directory. When negotiations failed, Feist extracted and published the listings it needed from Rural's directory without Rural's consent.3 Rural sued Feist claiming that their white pages are subject to copyright protection. A district court granted summary judgment to Rural in its copyright infringement suit, holding that telephone directories are copyrightable.4 The Court of Appeals affirmed this decision. Shortly thereafter, Feist appealed to the Supreme Court.5 The Supreme Court began its analysis by stating that facts are free and should be accessible to the public. However, although facts may not be copyrightable, compilations of facts, that are selected and arranged in an original manner, deserve copyright protection.6 For a compilation to be copyrightable, there must be selection and arrangement.7 The Supreme Court stated, “selection and arrangement, so long as they are made independently by the compiler and entail a minimal degree of creativity, are sufficiently original that Congress may protect such compilations through the copyright laws.”8

In applying the facts of this case to the law, the court found the selection and arrangement of Rural's white pages did not satisfy the minimum constitutional standards for copyright protection.9 In preparing its white pages, Rural simply took the data provided by its subscribers and listed it alphabetically by last name. The court felt that Rural's selection of the basic information of name, town, and telephone number is selection of a sort, but lacked the “modicum” of creativity.10 “There is nothing remotely creative about arranging names alphabetically in a white pages directory. It is an age-old practice, firmly rooted in tradition and so commonplace that it has come to be expected as a matter of course.”11

However, the Supreme Court did not define what degree of minimal creativity in selection and arrangement of facts is required to obtain copyright protection. Database developers are left with few guidelines as to what constitutes the minimal creativity required for adequate selection and arrangement. This uncertainty has caused many in the database community to seek additional forms of protection for their works. These additional forms of protection will be covered in Parts 2 and 3.

1 499 U.S. 340, 342 (1991).
2 Id.
3 Id.
4 Id.
5 Id.
6 Id. at 349.
7 Id. at 348.
8 Id.
9 Id. at 362-364.
10 Id.
11 Id.

This article has been reprinted with permission from the November/December 2005 edition of Res Ipsa Loquitur, published by the Washtenaw County Bar Association.