Vol 7 No 1 - Roger Williams University School of Law

only such as are original, and are founded in the creativepowers of the mind. The writings which are to beprotected are the fruits of intellectual labor, embodied inthe form of books, prints, engravings, and the like.”In Burrow-Giles, the Court distilled the samerequirement from the Constitution’s use of the word“authors.” The Court defined “author,” in a constitutionalsense, to mean “he to whom anything owes its origin;originator; maker.” As in The Trade-Mark Cases, theCourt emphasized the creative component of originality.It described copyright as being limited to “originalintellectual conceptions of the author,” and stressed theimportance of requiring an author who accuses another ofinfringement to prove “the existence of those facts oforiginality, of intellectual production, of thought, andconception.”“No one may claim originality as to facts.” This isbecause facts do not owe their origin to an act ofauthorship. The distinction is one between creation anddiscovery: the first person to find and report a particularfact has not created the fact; he or she has merelydiscovered its existence. To borrow from Burrow-Giles,one who discovers a fact is not its “maker” or“originator.”48Building upon this reasoning, the Court held that the copyingof 1309 entries in the white pages of the telephone directory wasnot a copyright infringement nor was the selection or arrangementof the entries in basic alphabetical order creative enough to give athin layer of copyright protection to the arrangement of theentries.49As a consequence of the Feist decision, arguments were madethroughout the world for the creation of a sui generis form of legalprotection for the time and expense of creating databases. In1996, the European Union adopted a Directive on the LegalProtection of Databases50 that proposed a sui generis regime; later48. Id. at 345-47 (citations omitted).49. See BellSouth Advertising & Pub. Co. v. Donnelley Info. Pub., Inc., 999 F.2d1436 (11th Cir. 1993).50. Council Directive 96/9/EC, 1996 O.J. (L77) 20.