Dissertation Information for Shelly Warwick
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Title: The judicial influence and policy implications of "Feist" in regard to the protection of databases and compilations
Abstract: In 1991 the Supreme Court of the United States ruled in Feist that the Constitution mandated at least a modicum of creativity as a component of originality for works to be protected by copyright. Though the Court stated that almost all works would meet this minimum standard, it nonetheless found that the white page phone directory in question did not. In the wake of this decision the producers of databases and compilations have felt their products would receive less protection under copyright and there have been a number of initiatives to provide additional protection for these types of factual works. To determine whether such works are receiving less protection by the courts since Feist , and to determine if the Feist decision has necessitated a change in information policy, all federal court cases prior to January 1, 1998 that cite Feist were reviewed and analyzed. Of the 249 decisions examined in 222 matters, 74 decisions in 63 matters pertain to compilations and, of these, 34 to factual compilations. In non-compilations cases, Feist was found to be cited more as a single source of copyright law as recently interpreted by the Supreme Court than for the new holdings in the decision. In the compilation cases, slightly more protection was found to be provided for non-factual compilations than for factual compilations, with slightly more protection offered to factual compilations in those circuits which were associated with the doctrine of industrious collection prior to Feist . Only five matters were found where it could be conclusively stated that the work in question received less protection under copyright than it would have prior to the Feist decision, with a lesser degree of protection a possibility in 6 additional cases. These findings do little to support a need to provide greater legal protection for factual works in the wake of Feist , especially in view of the other legal and technological protections available and the long standing United States policy of encouraging expression. It is concluded, based on Feist , that the enactment of database protection laws in the United States is unnecessary, unconstitutional, and poor policy.
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