Wednesday, May 4, 2011
Miriam Bitton, Bar-Ilan University Faculty of Law, has published Protection for Informational Works after Feist Publications Inc. v. Rural Telephone Service at 21 Fordham Intellectual Property, Media & Entertainment Law Journal 611 (2011). Here is the abstract.
Feist’s progeny seems to be very troubling for many reasons. It fails to provide guidance and coherence regarding key questions pertaining to copyright doctrine. Many courts fail to faithfully apply Feist's holding, finding originality where none exists. Courts should exercise more diligence in searching for creative selection and arrangement or in distilling the work’s nature (as either factual or fictional). Providing protection to such works upsets the delicate balance between what should be protectable by intellectual property and what should reside in the public domain. Courts can employ the intent test in exploring the work’s nature and should exercise more caution when handling works whose arrangement and selection is dictated by functional considerations. Additionally, it should be pointed out that the creative selection and arrangement test for compilations copyright is probably an obsolete test for most databases offered online because they most often purposefully lack selection and arrangement. Therefore, given this new environment this protectability threshold is inapplicable to most databases.
Download the article from SSRN at the link.