1 Feb 20:06
Re: Copyright in Bib Records
Aaron, thanks for your very interesting comments. I agree that the case for copyright in individual bib
records is weak for the reasons you mention. But here are some additional suggestions for arguments in
favor of such a copyright in individual bib records created by persons other than U.S. federal government
employees.
The statute and cases seem to suggest two avenues by which copyright could attach to an individual bib
record containing noncopyrightable material: under Section 102(a)(1) of the Copyright Act, if the
record “integrates” the noncopyrightable material with copyrightable expression; or as a
compilation under Section 103 of the Copyright Act, through the selection and arrangement of the
noncopyrightable material. More detail on this appears in the last paragraph below.
Aaron’s comments seem to suggest that respecting individual original bib records created by persons
other than federal government employees, the following might be considered factors weighing in favor of
a finding of copyrightability (under Section 102 or 103):
• the creating library did not put the bib record on a publicly available server for free-of-charge,
unrestricted download, which might be viewed as relinquishing copyright or granting a broad implied
license;
• the presence of substantial original prose, such as in field 520 summary notes;
• use of classification numbers or codes not created by U.S. federal government employees (such as DDC or
UDC);
• use of subject headings or subject terms not created by U.S. federal government employees (such as
Sears headings, or genre terms from thesauri not created by LC or NLM).
In addition, for certain types of works combining noncopyrightable and copyrightable material, the
courts recognize what is termed a “thin” copyright, which protects only against copying of the
specific wording and arrangement used in the work, but not against slight variations or derivative
works. See Cont’l Cas. Co. v. Beardsley, 253 F.2d 702 (2d Cir.), cert. denied, 358 U.S. 816 (1958),
http://bulk.resource.org/courts.gov/c/F2/253/253.F2d.702.174.24752_1.html (“[I]n the
fields of insurance and commerce the use of specific language in forms and documents may be so essential to
accomplish a desired result and so integrated with the use of a legal or commercial conception that the
proper standard of infringement is one which will protect as far as possible the copyrighted language and
yet allow free use of the thought beneath the language.”) In these situations, the courts are reluctant
to find infringement, although they may determine that the work is copyrighted.
Respecting common law copyright in the U.S. , I believe that Section 301 of the Copyright Act provides that
such law is preempted, as of Jan. 1, 1978 , by the Copyright Act, respecting material within the scope of
Sections 102 or 103. See 17 U.S.C. sec. 301 (2006),
http://frwebgate.access.gpo.gov/cgi-bin/usc.cgi?ACTION=RETRIEVE&FILE=$$xa$$busc17.wais&start=789867&SIZE=21302&TYPE=TEXT
.
The presence of noncopyrightable material in a work such as an individual bib record does not appear to
preclude the attachment of copyright. Courts have held that a work that combines noncopyrightable
material, such as facts or public domain expression, with copyrightable material, may be protected as an
original work under Section 102 of the Copyright Act, or as a compilation under Section 103 of the
Copyright Act. Courts have held that a work containing noncopyrightable material that is integrated
with substantial prose, such as form books with instructions or commentary, may be copyrightable. See
Edwin K. Williams & Co., Inc. v. Edwin K. Williams & Co.-East, 542 F. 1053 (9 th Cir. 1976),
http://bulk.resource.org/courts.gov/c/F2/542/542.F2d.1053.74-1998.74-2449.html; Cont’l
Cas. Co. v. Beardsley, 253 F.2d 702 (2d Cir.), cert. denied, 358 U.S. 816 (1958),
http://bulk.resource.org/courts.gov/c/F2/253/253.F2d.702.174.24752_1.html. Courts have also
held that prose works such as histories are copyrightable where the noncopyrightable factual material
is integrated with copyrightable expression. See Hoehling v. Universal City Studios, Inc., 618 F.2d 972
(2d Cir. 1980), http://www.law.cornell.edu/background/amistad/6182d972.htm (“It is undisputed
that Hoehling has a valid copyright in his book.”); Nash v. CBS, 899 F.2d 1537 (7 th Cir. 1990)
(Easterbrook, Cir. J.), http://www.law.cornell.edu/background/amistad/8992df37.htm (“The
district court determined that the books' copyrighted material consists in Nash's presentation and
exposition, not in any of the historical events.”) At least some post-1976 Act courts, such as the 7 th
Circuit in Hoehling and Nash, appear to have considered such integrated works copyrightable under
Section 102(a)(1) of the Copyright Act. Courts have also held that, respecting certain works that
contain noncopyrighted material, a compilation copyright may attach to the selection and arrangement
of that material pursuant to Section 103 of the Copyright Act. See Rockford Map Publ’rs, Inc. v.
Directory Serv. Co., 768 F.2d 145 (7 th Cir. 1985) (Easterbrook, Cir. J.), cert. denied, 474 U.S. 1061,
http://bulk.resource.org/courts.gov/c/F2/768/768.F2d.145.84-2301.html ; Roth Greeting Cards v.
United Card Co., 429 F.2d 1106 (9 th Cir. 1970),
http://bulk.resource.org/courts.gov/c/F2/429/429.F2d.1106.23067_1.html .
The comments above are not offered as legal advice, and do not in fact constitute legal advice.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Robert C. Richards, Jr., J.D.*, M.S.L.I.S., M.A.
Philadelphia, PA
richards1000@...
* Member New York bar, retired status.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
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