Re: Ah, wonderful copyright

Nine legal arguments that OCLC has no copyright over MARC records:

1. The "originality" requirement—specifically the "fact-expression
distinction." Another good case is Feist v. Rural Telephone Service
(1991), which covered whether a telephone book could be copyrighted.
(The answer was no.) The majority opinion compared a phone book to a
census; a catalog is a sort of "census" of books.
2.If there is a strong case for creativity, it resides in the
assignment of something like LCC or LCSH, two systems created by the
government. The LC has a unique place in copyright law and history as
the official depository of copyrighted material and copyright
metadata. I know of no coypright cases specifically involving the
institution, but a system designed to organize the very *fruits* of
copyright ought to be particularly difficult for someone else to
assert copyright over.
3. "Names, titles and short phrases" cannot be coyprighted. That
covers most of a MARC record.
4. Transferring copyright is hard to do. The law is weighted in favor
of creators and the transfer needs to be explicit and in writing. The
owner of any copyrights on MARC records are the libraries that made
them, not OCLC. If any library signed over copyrights, I'll eat my
hat. (You can forget work-for-hire here. That's also stacked in favor
of creators.)
5. Anything cataloged before 1977 is almost certainly public domain.
Before that time, you had to formally renew a copyright in their 28th
year, and I will eat my hat again if anyone ever did it to a MARC
record.
6. Before 1978 there were very strict notice requirements anyway, so
all this data is open.
7. Between 1978 and 1988 the standard were relaxed and works could be
formally rescued if published without proper notice. One can certainly
doubt that even minimal notice was ever given, or that anyone filed
rescue notices.
8. Most state-government works are not copyrightable.
9. Lastly, there's a giant hole in copyright—and patents, etc.— when
it comes to states. In short, states can disregard copyright:

"It appears that the federal government cannot enforce coypright laws
against states, and that states are thus free to infinge copyrights,
patents, trademarks..." (Samuels, The Illustrated Story of Copyright,
p. 216).

So if California wanted to give every public school in CA the full
OCLC database, they could.

In sum, if OCLC has rights, they have to be contractual, not from copyright law.

On 4/27/07, Terence Fitzgerald <tfitzger <at> pratt.edu> wrote:
> Catalog records are not protected by copyright.  They contain data that
> can be readily observed and recorded by anyone, and thus fail the minimal
> creativity standard set in 1998 in Matthew Bender v. West Publishing
> (http://www.law.cornell.edu/copyright/cases/158_F3d_674.htm).  Of course,
> that doesn't mean you won't get sued . . .
>
> Terence Fitzgerald
> Humanities Index
> H. W. Wilson
>