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The Constitutionality of Proposed Database Protection Legislation

15 Pages Posted: 30 May 2009  

Paul Bender

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Date Written: 2002


Individual facts are not copyrightable. For most of the history of United States copyright law, however, under the so-called sweat of the brow doctrine, collections of uncopyrightable facts - often referred to today as databases - could seek federal statutory copyright protection. In Feist Publications, Inc. v. Rural Telephone Service Co., Inc., the Supreme Court rejected the sweat of the brow theory as inconsistent with basic copyright principles. The Court held that collections of facts are federally copyrightable only when some originality inheres in their selection or arrangement and that, even when such originality exists, the federal copyright covers only the original selection and arrangement, and not the collection of facts itself. The twin holdings of Feist, the Court said, are a constitutional requirement because originality is a constitutionally mandated prerequisite for copyright protection.

The holdings in Feist have prompted proposals for new federal legislation. Under Feist, such legislation cannot be based on Congress's copyright power. The most likely alternative source of legislative power would be Congress's broad authority under Article I of the Constitution to regulate interstate and foreign commerce. This article addresses two constitutional questions that have been raised in connection with such legislative proposals: (1) Does the Court's holding in Feist preclude Congress from using its commerce, rather than its copyright, power to provide protection against the unauthorized and commercially unfair appropriation of databases? (2) Even if the Commerce Clause is a potential source of affirmative federal power, does the First Amendment prohibit such federal database protection?

Keywords: Copyright, Commerce Clause, First Amendment

Suggested Citation

Bender, Paul, The Constitutionality of Proposed Database Protection Legislation (2002). University of Dayton Law Review, Vol. 28, 2002. Available at SSRN:

Paul Bender (Contact Author)

Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )

Box 877906
Tempe, AZ 85287-7906
United States

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