Re: Ah, wonderful copyright

Beautiful post Simon. Bravo.

On 4/27/07, Simon Spero <ses <at> unc.edu> wrote:
> To clarify and expand on some of the statements made in this thread, here's
> some stuff I culled from my notes.  I am not a lawyer. I'm just a lone duck,
> trapped in a world he never made.
>
> 1) OCLC has claimed only a compilation copyright in bibliographic records,
> and not in the record itself.  The thinking behind this is explained quite
> well in Rowland C. Brown, OCLC Copyright and Access to Information; Some
> Thoughts, 11 J. Academic Librarianship 197,198(1985).
>
> 2) Copyright was applied for in December 1982, and was granted
> restrospective to that time in December 1984. Over 100 letters were sent to
> the LC Copyright Office during this period  arguing against granting
> registration. Janice R. Franklin, Database Ownership and Copyright Issues
> among Automated Library Networks: an analysis and case study 86 (Ablex
> Publication Corp, 1993) (hereafter Franklin).
>
> 3) The legal theory behind the registration was  that of "Sweat of the
> brow", which held that the mere collecting  of data was  sufficient to
> permit  granting of a compilation copyright.  (Franklin 84-85).
>
> 4) The landmark  case on the scope of compilation copyright in "mere facts"
> is Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340
> (1991).   In this case, the Supreme Court held that "[...]copyright in a
> factual compilation is thin. Notwithstanding a valid copyright, a subsequent
> compiler remains free to use the facts contained in another's publication to
> aid in preparing a competing work, so long as the competing work does not
> feature the same selection and arrangement." (Feist, supra).  Indeed,
> "[t]his result is neither unfair nor unfortunate. It is the means by which
> copyright advances the progress of science and art." (Feist, supra)
>
> 5)  Standard arrangements based on alphabetic, numerical, or lexicographic
> ordering are public domain. (Feist, supra).  Exhaustive enumeration exhibits
> insufficient creativity in selection to pass the constitutional  requirement
> of creativity (Feist, supra).
>
> 6) Congress has repeatedly considered creating a   sui generis right of
> protection; these attempts have not repeatedly failed.  The ALA has strongly
> opposed these efforts - details of their work can be found online at
> http://www.ala.org/ala/washoff/woissues/copyrightb/dbprotection/databaseprotection.cfm
> .
>
> 7)    Assessment Technologies of WI, LLC v. WireData Inc, 350 F.3d 640 (7
> Cir. 2003) suggests that under the doctorine of copyright misuse, some
> provisions of OCLC's licensing might  not survive a public records request.
>
> ------------------
> Editorial:
>
> OCLC's real asset has never been the data it holds.  OCLC has two  real
> assets are the people;  people like Jay Jordan, Lorcan Dempsey, Thom Hickey
> and Stuart Weibel; and the daily reminder of the legacy of Fred Kilgour that
> it is their duty to uphold.
>
> If you look at the direction that OCLC has been taking under Jay Jordan, it
> seems clear that his underlying strategy is based on recruiting top staff,
> creating new and innovative services, and bringing them to  much wider
> audiences;  if protecting the database was what mattered, Open WorldCat
> could never have happened.
>
> For  what is essentially a private  Memory Institution that does not yet
> have an endowment big enough to guarantee survival for the deep time
> horizons such institutions must have, keeping revenue flowing is critical.
> Once new sources of income are in place, I would be suprised if OCLC didn't
> move to open worldcat even more.
>
> Simon // Visualize Whirled Cats
>