Green, Michael Steven --- "Two Fallacies about Copyrighting Factual Compilations" [2009] ELECD 514; 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 4

Section Title: Two Fallacies about Copyrighting Factual Compilations

Author(s): Green, Michael Steven

Number of pages: 24

Extract:

4. Two fallacies about copyrighting
factual compilations
Michael Steven Green*
Now let us also take for scrutiny
The homeomeria of Anaxagoras,
So called by Greeks, for which our pauper-speech
Yieldeth no name in the Italian tongue,
Although the thing itself is not o'erhard
For explanation. First, then, when he speaks
Of this homeomeria of things, he thinks
Bones to be sprung from littlest bones minute,
And from minute and littlest flesh all flesh,
And blood created out of drops of blood,
Conceiving gold compact of grains of gold,
And earth concreted out of bits of earth,
Fire made of fires, and water out of waters,
Feigning the like with all the rest of stuff.1

The current law on the protection of factual compilations depends upon two
fallacies. When these fallacies are recognized and overcome, there is no reason
to refuse protection to the factual content of a compilation (as opposed to the
compilation's selection and arrangement of facts). Statutory solutions, such as
the European Union's 1996 Database Directive2 and recent proposals in
Congress,3 are unnecessary.
The first fallacy, exemplified in Justice O'Connor opinion in Feist
Publications, Inc. v Rural Telephone Service Co., is that facts cannot be copy-

* Thanks to Laura Heymann and to the participants in the `Feist, Facts, and
Functions' symposium at George Washington University Law School for helpful
comments on this chapter.
1 Titus Lucretius Carus, Of the Nature of Things 31­31 (William Ellery
Leonard trans., 1916) (1st Century ...