Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991), commonly called just
Feist v. Rural, was a
United States Supreme CourtThe Supreme Court of the United States is the highest judicial body in the United States, and leads the federal judiciary. It consists of the Chief Justice of the United States and eight Associate Justices, who are nominated by the President and confirmed with the "advice and consent" of the Senate...
case in which Feist had copied information from Rural's
telephone listingsA telephone directory is a listing of telephone subscribers in a geographical area or subscribers to services provided by the organization that publishes the directory.-Content:...
to include in its own, after Rural had refused to license the information. Rural had sued for
copyright infringementCopyright infringement is the unauthorized use of material that is covered by copyright law, in a manner that violates one of the copyright owner's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.For electronic and audio-visual media,...
. The Court ruled that information contained in Rural's phone directory was not copyrightable, and that therefore no infringement existed.
Background
Rural Telephone Service Company, Inc. is a telephone cooperative providing services for areas in northwest Kansas, with headquarters in the small town of
LenoraLenora is a city in Norton County, Kansas, United States. The population was 306 at the 2000 census.-Geography:Lenora is located at ....
, in
Norton CountyNorton County is a county located in the U.S. state of Kansas. As of 2000, the population was 5,953. The largest city and county seat is Norton.-Law and government:...
. The company was under a statutory obligation to compile a phone directory of all their customers free of charge as a condition of their monopoly franchise.
Feist Publications, Inc. specialized in compiling telephone directories from larger geographic areas than Rural from other areas of Kansas. They had licensed the directory of 11 other local directories, with Rural being the only hold-out in the region. Despite Rural's denial of a license to Feist, Feist copied some 4000 entries from Rural's directory. Because Rural had placed a small number of
phony entriesFictitious entries, also known as fake entries, Mountweazels, and Nihilartikels, are deliberately incorrect entries or articles in reference works such as dictionaries, encyclopedias, maps and directories...
to detect copying, Feist was caught.
Prior to this case, the substance of copyright in United States law followed the
sweat of the browIn a traditional English idiom, the sweat of one's brow refers to the effort expended in labor, and the value created thereby. The phrase is famously used in English translations of...
doctrine, which gave copyright to anyone who invested significant amount of time and energy into their work. At trial and appeal level the courts followed this doctrine, siding with Rural.
Ruling of the Court
The ruling of the Court was written by
Justice O'ConnorSandra Day O'Connor is an American jurist and was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006...
. It examined the purpose of copyright and explained the standard of copyrightability as based on
originalityOriginality is the aspect of created or invented works by as being new or novel, and thus can be distinguished from reproductions, clones, forgeries, or derivative works....
.
It is a long-standing principle of United States copyright law that "information" is not copyrightable, O'Connor notes, but "collections" of information can be. Rural claimed a collection copyright in its directory. The court clarified that the intent of copyright law was not, as claimed by Rural and some lower courts, to reward the efforts of persons collecting information, but rather "to promote the Progress of Science and useful Arts" (
U.S. Const. 1.8.8Article I, Section 8, Clause 8 of the United States Constitution, known as the Copyright Clause, the Copyright and Patent Clause , the Intellectual Property Clause and the Progress Clause, empowers the United States Congress:- History :At the time that the Constitution was written, both patent and...
), that is, to encourage creative expression.
Since facts are purely copied from the world around us, O'Connor concludes, "the
sine qua nonSine qua non or conditio sine qua non was originally a Latin legal term for " without which it could not be" or "but for..." or "without which nothing." It refers to an indispensable and essential action, condition, or ingredient.As a Latin term, it occurs in the work of...
of copyright is originality". However, the
standard for creativityThe threshold of originality is a concept in copyright law that is used to assess whether or not a particular work can be copyrighted. It is used to distinguish works that are sufficiently original to warrant copyright protection from those that are not...
is extremely low. It need not be novel, rather it only needs to possess a "spark" or "minimal degree" of creativity to be protected by copyright.
In regard to collections of facts, O'Connor states that copyright can only apply to the creative aspects of collection: the creative choice of what data to include or exclude, the order and style in which the information is presented, etc., but not on the information itself. If Feist were to take the directory and rearrange them it would destroy the copyright owned in the data.
The court ruled that Rural's directory was nothing more than an alphabetic list of all subscribers to its service, which it was required to compile under law, and that no creative expression was involved. The fact that Rural spent considerable time and money collecting the data was irrelevant to copyright law, and Rural's copyright claim was dismissed.
Implications
The ruling has major implications for any project that serves as a collection of knowledge. Information (that is,
factA fact is a pragmatic truth, a statement that can, at least in theory, be checked and confirmed. Facts are often contrasted with opinions and beliefs, statements which are held to be true, but are not amenable to pragmatic confirmation....
s, discoveries, etc.), from any source, is fair game, but cannot contain any of the "expressive" content added by the source
authorAn author is defined both as "the person who originates or gives existence to anything" and that authorship determines responsibility for what is created...
. That includes not only the author's own comments, but also his choice of which facts to cover, his choice of which links to make among the bits of information, his order of presentation (unless it is something obvious like an alphabetical list), any evaluations he may have made about the quality of various pieces of information, or anything else that might be considered "original creative work" of the author rather than mere facts.
For example, a
recipeA recipe is a set of instructions that show how to prepare or make something, especially a culinary dish.Modern culinary recipes normally consist of several components:*The name of the dish...
is a process, and not copyrightable, but the words used to describe it are; see
Publications International v Meredith Corp. (1996). Therefore, you can rewrite a recipe in your own words and publish it without infringing copyrights. But if you rewrote every recipe from a particular
cookbookA cookbook is a book that contains information on cooking. It typically contains a collection of recipes, and may also include information on ingredient origin, freshness, selection and quality.-History:...
, you might still be found to have infringed the author's copyright in the choice of recipes and their "coordination" and "presentation", even if you used different words, though the West decisions below suggest that this is unlikely unless there is some significant creativity in the presentation.
Feist proved most important in the area of copyright of legal case law publications. Although one might assume that the text of U.S. case law is in the
public domainThe public domain is a range of abstract materials—commonly referred to as intellectual property—which are not owned or controlled by anyone. The term indicates that these materials are therefore "public property", and available for anyone to use for any purpose...
,
Thomson WestWest publishes legal, business, and regulatory information in print, and on electronic services such as Westlaw. Its headquarters is in Eagan, Minnesota and has offices in Rochester, New York and Cleveland, Ohio...
had claimed a copyright as to the first page citations and internal pin-point page citations of its versions of court opinions (case law) found in its printed versions of the case law ("West's citation claims.") West also had claimed a copyright in the text of its versions of the case law, which included parallel citations and typographical corrections ("West's text claims.") The text claim would have barred anyone from copying the text of a case from a West case law reporter, since the copied text would include West enhancements to which West claimed copyright.
In a pre-Feist case, West's citation
copyrightCopyright is a form of intellectual property that gives the author of an original work exclusive right for a certain time period in relation to that work, including its publication, distribution and adaptation, after which time the work is said to enter the public domain...
claim had been affirmed by the U.S. Court of Appeals for the Eighth Circuit in a preliminary injunction case in 1986 brought by West against Mead Data, owner of Lexis.
West v. Mead (1986).
West v. Mead was overruled after Feist, in a case commenced in 1994 in the U.S. District Court for the Southern District of New York. West's citation claims were challenged in 1994 by legal publisher, Matthew Bender & Company and by a small CD-Rom publisher HyperLaw, Inc. HyperLaw intervened, joining Matthew Bender in the citation challenge and separately challenging West's text copyright claims. West was found by the Second Circuit in 1998 not to have a protectable copyright interest in its citations; neither to the first page citations nor to its internal pagination citations. See Matthew Bender v. West, Citation Appeal.
In the same case, but in separate decisions in which Matthew Bender was not involved, HyperLaw successfully challenged West's text claims. Judge John S. Martin ruled in favor of HyperLaw against West in a U.S. District Court decision in May, 1996.
Matthew Bender v. West, No. 94 Civ. 0589, 1997 WL 266972 (S.D.N.Y. May 19, 1997),
aff'd, 158 F. 3d 674 (2nd Cir. 1998),
cert. denied sub. nom. West v. Hyperlaw, 526 U.S. 1154 (1999).
West lost to HyperLaw in its appeal to the U.S. Court of Appeals for the Second Circuit and certiorari was denied by the U.S. Supreme Court.
After the 1986 West v. Mead decision, Mead Data and Lexis were acquired by Reed Elsevier, a large English-Dutch based publisher. During the Matthew Bender v. West case, Reed Elsevier and Matthew Bender entered into a strategic relationship, culminating in Reed Elsevier's acquisition of Matthew Bender in 1998, just after the Second Circuit appeals were argued. Reed Elsevier now was on the side of West and filed an amicus brief opposing HyperLaw and supporting West. Thus, although the name of the case might suggest that Matthew Bender challenged West on the text claim, by the middle of the case Matthew Bender was on the side of West on the text issue. Reed Elsevier's support of West's claims to a copyright in text was consistent with the initiatives, discussed below, to sidestep Feist by implementing database protection, through legislation and treaties discussed below. Similarly, during the case, West was acquired by the Canadian based international publisher, the Thomson Corporation.
Another case covering this area is
Assessment Technologies v. Wiredata (2003), in which the Seventh Circuit Court of Appeals ruled that a copyright holder in a compilation of public domain data cannot use that copyright to prevent others from using the underlying public domain data, but may only restrict the specific format of the compilation, if that format is itself sufficiently creative. Assessment Technologies also held that it is a
fair useFair use is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders, such as use for scholarship or review. It provides for the legal, non-licensed citation or incorporation of copyrighted material in another...
of a copyrighted work to reverse engineer that work in order to gain access to uncopyrightable facts. Assessment Technologies also created new law, stating that it is a
copyright misuseCopyright misuse is an equitable defense against copyright infringement in the United States based on the abusive or improper conduct of the copyright owner in enforcing the copyright...
and an
abuse of processAbuse of process is a common law intentional tort. It is to be distinguished from malicious prosecution, another type of tort that involves misuse of the public right of access to the courts....
if one attempts to use a
contractIn law, a contract is a binding legal agreement that is enforceable in a court of law. That is to say, a contract is an exchange of promises for the breach of which the law will provide a remedy....
or license agreement based on one's copyright to protect uncopyrightable facts.
In the late 1990s, Congress attempted to pass laws which would protect collections of
dataThe term data means groups of information that represent the qualitative or quantitative attributes of a variable or set of variables. Data are typically the results of measurements and can be the basis of graphs, images, or observations of a set of variables...
, but these measures failed. By contrast, the
European UnionThe European Union is an economic and political union of 27 Member States, located primarily in Europe. Committed to regional integration, the EU was established by the Treaty of Maastricht on 1 November 1993 upon the foundations of the pre-existing European Economic Community...
has a
sui generisSui generis is a Latin expression, literally meaning of its own kind/genus or unique in its characteristics. The expression is often used in analytic philosophy to indicate an idea, an entity, or a reality which cannot be included in a wider concept.-Biology:In the taxonomical structure "genus →...
(specific to that type of work) intellectual property protection for collections of data.
Other countries
The applicability of copyright to phone directories has come up in several other countries.
In Canada, the appeal-level case of
Tele-Direct (Publications) Inc. v. American Business Information Inc. (1997) 76 C.P.R. (3d) 296 (F.C.A.) reached a similar result to that of Feist. However, the Supreme Court partially backed away from the originality doctrine in
CCH Canadian Ltd. v. Law Society of Upper CanadaCCH Canadian Limited v. Law Society of Upper Canada, [2004] 1 S.C.R. 339, is the landmark Supreme Court of Canada case that establishes the bounds of fair dealing in Canadian copyright law. The Law Society of Upper Canada was sued for copyright infringement for providing photocopy services to...
. Under the CCH ruling, someone may assert protection in a database where the facts are themselves not copied from another source. eg. A person may assert protection in a collection of her own recipes, but she may not assert protection in a database of facts about persons and their ancestry compiled from census records.
In Australia, the Federal Court decision of
Telstra v Desktop Marketing Systems [2002] FCAFC 112 followed the UK approach in
Walter v. LaneWalter v. Lane [1900] AC 539, — a precedent in the Commonwealth countries that recognized fixation could be a determining factor in copyright determinations.-Facts:...
and ruled that copyright law did, in fact, follow the "sweat of the brow" doctrine. However,
Desktop v. Telstra held, as did
CCH Canadian, that collections of facts must not be copied from other sources to be eligible for protection.
Relation with treaties
Congress has been considering whether to implement a
treatyA treaty is an agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as: agreement, protocol, covenant, convention, exchange of letters, etc...
negotiated at the
World Trade OrganizationThe World Trade Organization is an international organization designed by its founders to supervise and liberalize international capital trade. The organization officially commenced on January 1, 1995 under the Marrakesh Agreement, replacing the General Agreements on Tariffs and Trade , which...
. Part of the
Uruguay Round AgreementThe Uruguay Round was the 8th round of multilateral trade negotiations conducted within the framework of the General Agreement on Tariffs and Trade , spanning from 1986-1994 and embracing 110 countries as “contracting parties”...
resulted in text which states, in Part II, Section 1, Article 10:
The text mirrors that of Article 2(5) of the
Berne ConventionBerne Convention may refer to:* Berne Convention for the Protection of Literary and Artistic Works* Convention on the Conservation of European Wildlife and Natural Habitats* The Treaty of Bern, establishing the General Postal Union...
, which applies to "collections of literary or artistic works".
This treaty provision is broadly in line with the United States Copyright Act and the Act's
case lawCase law is the reported decisions of selected appellate and other courts which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...
, which protects compilations of data whose "selection and arrangement" is sufficiently original.
See ("compilation" as defined by the United States Copyright Act includes compilations of data). The standard for such originality is fairly low; for example, business listings have been found to meet this standard when deciding which companies should be listed and categorizing those companies required some kind of expert judgment.
See Key Publ'ns, Inc. v. Chinatown Today Pub. Enters., 945 F.2d 509 (2d Cir. 1991) (applying
Feist). As such, implementation of this treaty would not overrule
Feist.
See also
- List of United States Supreme Court cases, volume 499
- Idea-expression divide
The idea-expression divide or idea-expression dichotomy is a concept which explains the appropriate function of copyright laws, which are generally designed to protect the fixed expression or manifestation of an idea rather than the fundamental idea itself. The case of Baker v. Selden was the first...
External links