Copyright protection of databases

Database Protection Before Feist
In the terminology of copyright law, a database is a “compilation" &mdash; “a work formed by the collection and assembling of preexisting materials or of data. . . ." Compilations constitute one of the oldest forms of authorship protected under U.S. law, dating back to the 18th century. Compilations were protected as “books” under the first federal copyright statute.

Over the course of the 19th century, two rationales developed for protecting compilations under copyright. One rationale, which has come to be known as the “sweat of the brow” doctrine, focused on the effort and investment of the compiler. The other focused on the compiler’s judgment and creativity in the selection and arrangement of the materials comprising the compilation.

The earliest compilation cases that discussed the basis for copyright protection identified the compiler’s effort &mdash; “his own expense, or skill, or labor, or money &mdash; as the critical contribution justifying protection. These cases, involving works ranging from law reports and legal encyclopedias to compilations of war records, emphasized both the compilers’ effort and the copiers’ “unfair use of the copyrighted work, in order to save themselves the time and labor of original investigation. .

During the late 19th century courts began to articulate a basis for copyright protection generally that differed from the labor/investment approach taken in cases involving compilations. In a series of decisions from 1879 to 1903, the Supreme Court held that the “writings” that could be protected under the copyright clause of the Constitution included “only such as are original, and indicated that creativity is a component of originality. Under this approach, copyright was described as protecting writings that are “the fruits of intellectual labor," “productions of intellect or genius" or “original intellectual conceptions of the author."

The evolving doctrine of originality was applied by some courts in compilation cases, particularly cases involving compilations of textual materials such as law books. These cases identified the author’s critical contribution justifying protection as his judgment in selecting and arranging materials. This approach coexisted with, rather than supplanted, sweat of the brow cases. Sweat of the brow was applied to cases involving purely factual compilations, such as catalogs and directories. Sometimes the two approaches appeared to be melded together in a single case, with the court focusing on the “labor” and “skill” contributed by the author. With very few exceptions, one or the other approach was drawn upon by the court to support the conclusion that a particular compilation was protectable, rather than to deny protection.

On the question of the scope of protection afforded to compilations, there was somewhat greater uniformity in the case law. In compilation cases, regardless of the theoretical framework adopted to justify copyright protection, once the plaintiff’s work was determined to be copyrightable, courts generally held a defendant to have infringed whenever material was copied from the plaintiff’s work. Typically there was no inquiry as to whether the particular material copied was protected by the plaintiff’s copyright. To avoid infringement, a second-comer was required to go to the original sources and compile the material independently, without reference to the earlier work. A common thread running through many of these decisions was the court’s desire to prevent the copier from competing unfairly with the compiler by appropriating the fruits of the compiler’s efforts or creativity. In this sense, courts treated copyright protection for compilations much like a branch of unfair competition law.