Protection for Informational Works after Feist Publications Inc. v. Rural Telephone Service

60 Pages Posted: 23 Apr 2011  

Miriam Marcowitz-Bitton

Bar-Ilan University - Faculty of Law

Date Written: April 21, 2011

Abstract

Feist’s progeny seems to be very troubling for many reasons. It fails to provide guidance and coherence regarding key questions pertaining to copyright doctrine. Many courts fail to faithfully apply Feist's holding, finding originality where none exists. Courts should exercise more diligence in searching for creative selection and arrangement or in distilling the work’s nature (as either factual or fictional). Providing protection to such works upsets the delicate balance between what should be protectable by intellectual property and what should reside in the public domain. Courts can employ the intent test in exploring the work’s nature and should exercise more caution when handling works whose arrangement and selection is dictated by functional considerations. Additionally, it should be pointed out that the creative selection and arrangement test for compilations copyright is probably an obsolete test for most databases offered online because they most often purposefully lack selection and arrangement. Therefore, given this new environment this protectability threshold is inapplicable to most databases.

Keywords: intellectual property law, copyright law

Suggested Citation

Marcowitz-Bitton, Miriam, Protection for Informational Works after Feist Publications Inc. v. Rural Telephone Service (April 21, 2011). Fordham Intellectual Property, Media & Entertainment Law Journal, Vol. 21, p. 611, 2011. Available at SSRN: https://ssrn.com/abstract=1817824

Miriam Marcowitz-Bitton (Contact Author)

Bar-Ilan University - Faculty of Law ( email )

Ramat-Gan, 52900
Israel

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