Two Fallacies about Copyrighting Factual Compilations
Robert Brauneis (ed.), INTELLECTUAL PROPERTY PROTECTION OF FACT-BASED WORKS: COPYRIGHT AND ITS ALTERNATIVES 169-204 (Edward Elgar Press 2009)
31 Pages Posted: 25 Sep 2008 Last revised: 13 Nov 2023
Date Written: September 24, 2008
In this essay, I identify two fallacies concerning the copyrightability of factual compilations. The first is that facts cannot be copyrighted because they are not independently created. I argue that once facts are properly understood as content, rather than reality, the independent creation requirement does not stand in the way of their copyrightability.
The second is the fallacy of division. This occurs when one wrongly takes what is true of a whole to be true of some or all of its constituents. An example is the assumption that if we are conscious, some or all of our cells must be conscious as well. The fallacy of division expresses itself in copyright law in the assumption that if a factual compilation is copyrightable, there must be some constituents of the compilation that are copyrightable as well. Since the individual facts out of which the compilation is composed cannot be these copyrightable constituents, courts assume that they are instead the compilation's selection and arrangement of facts.
I argue that such an approach to factual compilations is incoherent. Under the pressure of analysis, selections and arrangements themselves dissolve into uncopyrightable components - the submethods out of which selections and arrangements as a whole are composed. One can consider selections and arrangements to be copyrightable only if one sets aside the fallacy of division and looks at selections and arrangements in the aggregate to determine their copyrightability, without attempting to find some component of them that is copyrightable. But once one has set aside the fallacy of division with respect to a compilation's selection and arrangement, there is no reason not to do the same with respect to its factual content.
I call an approach that determines the copyrightability of a compilation by looking to the collective factual content communicated by the compilation, rather than the compilation's selection and arrangement, the collective fact approach. The collective fact approach is in keeping with the way that fictional works are treated under copyright law. Although the individual elements out of which a novel's plot, scenes, and characters are composed are unprotected, no one would say that the copyrightable part of a novel is its selection and arrangement of these elements. One determines copyrightability by looking to the collective content of the novel itself - its plot, scenes, and characters. A factual compilation, I argue, should be assessed on the basis of whether its collective factual content is copyrightable.
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