Bitton, Miriam --- "Feist, Facts and Functions: Historical Perspective" [2009] ELECD 511; in Brauneis, F. Robert (ed), "Intellectual Property Protection of Fact-based Works" (Edward Elgar Publishing, 2009)

Book Title: Intellectual Property Protection of Fact-based Works

Editor(s): Brauneis, F. Robert

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848441835

Section: Chapter 1

Section Title: Feist, Facts and Functions: Historical Perspective

Author(s): Bitton, Miriam

Number of pages: 36

Extract:

1. Feist, facts and functions: historical
perspective
Miriam Bitton1

INTRODUCTION
The 1990s brought significant developments in the field of information tech-
nology. These in turn stimulated the creation of a new global market for elec-
tronic information services and products, a market that is occupied
substantially by electronic databases. The emergence of these new technolog-
ical developments challenged many branches of the law, including intellectual
property law. A particularly prominent part of this debate is how the law
should address the protection of electronic databases.
The debate over database protection in the United States can be traced back
to the Supreme Court's seminal decision in Feist Publications, Inc. v Rural
Telephone Service Co.2 In Feist, the Court found white pages telephone direc-
tories to be non-copyrightable. The Court held that the touchstone for copyright
protection is creative originality, and that this requirement is constitutionally
mandated. The Court's decision also clarified that its holding `inevitably means
that the copyright in a factual compilation is thin. Notwithstanding a valid
copyright, a subsequent compiler remains free to use the facts contained in
another's publication to aid in preparing a competing work, so long as the
competing work does not feature the same selection and arrangement.'3 Feist
thus ended the tradition in some courts of providing copyright protection based
on the labor invested in creating the work and declared the death of the `sweat
of the brow' and `industrious collection' doctrines.


1 Assistant Professor, Bar-Ilan University Faculty ...