Vol 7 No 1 - Roger Williams University School of Law

The compilation of a database requires a substantialinvestment. Producers of printed databases at one time enjoyednatural “lead-time” with which to exploit their product, as copyinga large printed compilation was time consuming. Today, thewholesale copying of an electronic database can be completed inseconds with 100% accuracy. The concept of providing artificial“lead-time” to minimize harm to a database developer’s market isreflected in the state common law “hot news” misappropriationdoctrine.84 Providing a limited term of such artificial leadtimeallows database developers to recoup their investment of researchand development costs.85 If free riders can immediately andperfectly copy the database, the original developer will be deprivedof the opportunity to develop its market niche.Because under current copyright law databases are protectedonly if and to the extent that they contain material selected orarranged in an organized manner, massive databases intended tobe comprehensive may fall short of the minimum level oforiginality required by Feist. Moreover, computer searchabledatabases are not organized in any humanly understandablemanner until there is a request from a specific user. Even if theorganization of a comprehensive database does present a modicumof creativity, the resulting “thin” copyright protection may beabrogated by the merger doctrine.86 Those works surviving themerger doctrine will be subject to a fair use privilege that isgenerally thought to be far broader when factual compilations,rather than highly creative works, are involved.87Economists argue that databases present a significantpotential for a free rider problem.88 For example, the American84. For a discussion of the origins of this doctrine, see supra notes 34-40 andaccompanying text.85. See generally J. H. Reichman & Pamela Samuelson, Intellectual PropertyRights in Data?, 50 Vand. L. Rev. 51, 145-46 (1997).86. See Morrissey v. Proctor & Gamble Co., 379 F.2d 675, 678-79 (1st Cir. 1967)(stating that when there is only a limited number of ways to express an idea, courtswill find that the idea has merged with the expression and thus not copyrightable).Highly factual or functional expression, such as recipes, parts lists, identificationnumbers, and the like, even if capable of being expressed in more than one way, areparticularly vulnerable to application of the merger doctrine.87. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984).88. See, e.g., Collections of Information Antipiracy Act: Hearing on H.R. 2652Before the Subcomm. on Courts and Intellectual Prop. of the House Comm. on theJudiciary, 105th Cong. (1998) [hereinafter Hearing 2652] (statement of Robert E. Aber,on behalf of The NASDAQ Stock Market, Inc.), available at