copyright trivia

OCLC, apparently, as far as I can tell, registered a copyright for Worldcat in 1982.

The US Supreme Court in 1991 decided Feist v. Rural, significantly reducing the applicability of copyright to collections of facts.

In regard to collections of facts, O’Connor states that copyright can only apply to the creative aspects of collection: the creative choice of what data to include or exclude, the order and style in which the information is presented, etc., but not on the information itself. If Feist were to take the directory and rearrange them it would destroy the copyright owned in the data.

The court ruled that Rural’s directory was nothing more than an alphabetic list of all subscribers to its service, which it was required to compile under law, and that no creative expression was involved. The fact that Rural spent considerable time and money collecting the data was irrelevant to copyright law, and Rural’s copyright claim was dismissed.

Prior to this decision, the “sweat of the brow” doctrine held, that how much time and money you put into assembling a collection was relevant to applicabilty of copyright. Not after Feist, irrelevant. How much creativity went into the collection of data was, however.

Now, on the one hand, we could ask how much creativity goes into an individual cataloging record. It’s a bit more than a phone book, there are choices to be made, and occasionally even narrative written by the cataloger. Although the theoretical sitaution where it’s all done according to very strict rules seems to kind of argue against the “spark” (in the language of the decision) of creativity.

Ah, but OCLC didn’t try to register copyright on individual records (they didn’t write em after all). They tried to register copyright on the collection that is WorldCat.

1) How much creativity, on the part of OCLC, goes into the “arrangement” or decisions of “inclusion” or “exclusion” of data in WorldCat?  I’m not sure what argument could be made for this.

2) Even if we accept there is enough creativity in the arrangement for copyright is granted to the collection, this only protects those creative aspects of the collection. It would not protect people taking individual records from the collection. It might protect, say, OCLC’s workset-grouping data (if that was deemed to involve any creativity to create! Not entirely clear.)  It might protect against people copying the entirety of WorldCat–again assuming that there were original creative decisions being made on what to include or exclude. But even assuming the best (for the presumed copyright), I can’t think of a legal argument that would prevent people from taking individual records here and there–or sets of records assembled according to the taker’s choosing, not OCLCs.

Another useful important case is West v. Mead (1986). The Supreme Court had originally ruled that the page numbers in West’s legal publications were copyrightable, according to the sweat of the brow doctrine. So other people couldn’t publish concordances or indexes based on West page numbers without a license from West. (This mattered because courts often required West page numbers to be cited in legal briefs). But post Feist, the West v. Mead decision was over-ruled in  Bender v. West, 158 F.3d 693 (2d Cir. 1998), cert. denied, 526 U.S. 1154 (1999) . West page numbers didn’t involve even a spark of creativity, they were no longer protected by copyright post-Feist. [All this from my memory, backed up by the Wikipedia article on Feist for dates and case names.]

All this is to say, the law has changed quite a bit since 1982. If OCLC is counting on a copyright, they should probably have their legal counsel investigate.  I’m not a lawyer, it doesn’t seem good to me–and even if they did have copyright, I can’t see how this would prevent people from taking sets of records anyway, as long as they didn’t take the whole database. But I’m still not a lawyer.

Of course, copyright is irrelevant when discussing your contractual obligations under a license or any other kind of contract. You can agree to refrain from doing all sorts of things that copyright didn’t prevent you from doing, and if it’s a legally binding contract, it’s a legally binding contract.  But for a contract to be legally binding, you have to actually agree to it.  OCLC Members might agree to the record sharing policy as a license (a license is a form of contract), perhaps as a condition of membership, perhaps they already have. Third parties that have no relationship to OCLC certainly have not. So, I can’t see any reason they’d be bound by it unless or until they agree to it. Accessing the website or the WorldCat database could conceivably be considered an implicit agreement to it, ala the ‘click through’ license, although that’s more defensible when you actually DO have to click an ‘I agree’ to it, not just when it’s linked to in tiny type on the bottom of the page (or not even linked to at all.)


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