Vol 7 No 1 - Roger Williams University School of Law
Vol 7 No 1 - Roger Williams University School of Law 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.
in 1996, the World Intellectual Property Organisation (WIPO)produced proposals for a similar international scheme for theprotection of databases. The EU Directive creates an exclusive suigeneris right for the makers of databases.51 The general objectiveof this right is to protect the investment of time, money and effortby the maker of a database, irrespective of whether the databaseis in itself innovative. According to the Directive, a database isprotected if there has been a substantial qualitative orquantitative investment in obtaining, verifying or presenting thecontents of the database.52 The duration of the protectionprovided by the Directive is fifteen years.53At present, the WIPO proposal has stalled. However, the EUDirective is slowly being introduced.54 The U.S. Congress hasconsidered a number of proposals for database protection but hasyet to enact a definitive sui generis regime. One proposal from1999 was the Collections of Information Antipiracy Act,55 whichread in part:1402. Prohibition against misappropriationAny person who extracts, or uses in commerce, all or asubstantial part, measured either quantitatively orqualitatively, of a collection of information gathered,organized, or maintained by another person through theinvestment of substantial monetary or other resources, soas to cause harm to the actual or potential market of thatother person, or a successor in interest of that otherperson, for a product or service that incorporates thatcollection of information and is offered or intended to beoffered for sale or otherwise in commerce by that otherperson, or a successor in interest of that person, shall beliable to that person or successor in interest for the51. Id. at art. 8. The reciprocity principle embodied in art. 11 means thatdatabase makers from countries outside the EU will not be given the benefits of thesedatabase rights unless their countries offer comparable protection to EU databasemakers.52. See id. at art. 7.53. Id. at art. 10.54. See, e.g., Council Directive 96/9/EC, 1996 O.J. (L77) 20, implemented by theCopyright and Rights in Databases Regulations 1997 (SI 1997/3032) (implementing theEU directive in the UK on Jan. 1, 1998); British Horseracing Board Ltd. v. William HillOrg., [2001] R.P.C. 31 (Ch. 2001) (Eng.).55. H.R. 354, 106th Cong. (1999).
- Page 22 and 23: United States ought to adopt in lig
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- Page 50 and 51: of resources that qualifies that po
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- Page 76 and 77: eproduced, though there be no ingen
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in 1996, the World Intellectual Property Organisation (WIPO)produced proposals for a similar international scheme for theprotection <strong>of</strong> databases. The EU Directive creates an exclusive suigeneris right for the makers <strong>of</strong> databases.51 The general objective<strong>of</strong> this right is to protect the investment <strong>of</strong> time, money and effortby the maker <strong>of</strong> a database, irrespective <strong>of</strong> whether the databaseis in itself innovative. According to the Directive, a database isprotected if there has been a substantial qualitative orquantitative investment in obtaining, verifying or presenting thecontents <strong>of</strong> the database.52 The duration <strong>of</strong> the protectionprovided by the Directive is fifteen years.53At present, the WIPO proposal has stalled. However, the EUDirective is slowly being introduced.54 The U.S. Congress hasconsidered a number <strong>of</strong> proposals for database protection but hasyet to enact a definitive sui generis regime. One proposal from1999 was the Collections <strong>of</strong> Information Antipiracy Act,55 whichread in part:1402. Prohibition against misappropriationAny person who extracts, or uses in commerce, all or asubstantial part, measured either quantitatively orqualitatively, <strong>of</strong> a collection <strong>of</strong> information gathered,organized, or maintained by another person through theinvestment <strong>of</strong> substantial monetary or other resources, soas to cause harm to the actual or potential market <strong>of</strong> thatother person, or a successor in interest <strong>of</strong> that otherperson, for a product or service that incorporates thatcollection <strong>of</strong> information and is <strong>of</strong>fered or intended to be<strong>of</strong>fered for sale or otherwise in commerce by that otherperson, or a successor in interest <strong>of</strong> that person, shall beliable to that person or successor in interest for the51. Id. at art. 8. The reciprocity principle embodied in art. 11 means thatdatabase makers from countries outside the EU will not be given the benefits <strong>of</strong> thesedatabase rights unless their countries <strong>of</strong>fer comparable protection to EU databasemakers.52. See id. at art. 7.53. Id. at art. 10.54. See, e.g., Council Directive 96/9/EC, 1996 O.J. (L77) 20, implemented by theCopyright and Rights in Databases Regulations 1997 (SI 1997/3032) (implementing theEU directive in the UK on Jan. 1, 1998); British Horseracing Board Ltd. v. William HillOrg., [2001] R.P.C. 31 (Ch. 2001) (Eng.).55. H.R. 354, 106th Cong. (1999).
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