In defence of originality by Gary Lea

May 04, 2024

In 1996, the Entertainment Law Review published Gary Lea’s response to The Redundancy of Originality. It’s set out below. I then published a response to Gary Lea’s reply – see next post.

The footnotes are at the end.

*Ent. L.R. 21 Introduction

This article is intended as a reply to Mark Sherwood-Edwards' bold and interesting attempt in this Review1 to demonstrate the redundancy of the concept of originality in copyright law (hereinafter "the Article'): at the risk of gross oversimplification, this author reads the Article as laying down the following propositions:

(1) the present system of copyright and author's rights only offers patchy,2 indirect protection of fact products through the selection or arrangement of facts in compilations and so on, and better protection of fact products could be achieved by removing the originality requirement from copyright and author's rights altogether;

(2) the abolition of originality would even go so far as to permit facts themselves to be protected but would not create a monopoly since one can distinguish between fact existence and fact availability3 - independent gathering of facts would still be possible in most cases4 - and, in those situations where monopolisation does occur, anti-trust/competition law can correct any imbalance;

(3) originality would not be missed - one may legitimately compare copyright with tangible property which has no equivalent threshold test for conferral of property rights ("propertisation');5

(4) the standard argument that non-propertisation of facts leads to a greater flow of information is incorrect: refusing propertisation will diminish fact product production because producers' revenue-gathering ability will be worse off by either having to bear the costs of producers' efforts to find alternative forms of protection6 or, in the worst case scenario, finding that there are no new fact products since producers have gone out of business as a result of the unrestrained activity of copiers;7

(5) the function that originality performs is not properly part of the concept of property in any event since property is a means to an end (in other words, a mechanism for appropriating economic rewards) and not an end in itself;8

(6) on this basis, the traditional treatment of copyright as reward is incorrect - the reward is the value of property when realised in the market-place and not the property itself - and, therefore, the value judgment inherent in originality distorts the market by preempting market-based valuation;9

(7) the distortion argument holds true whichever variant of the originality value judgment one adopts: even under the low threshold UK originality test, for example, the most efficient a producer is in producing its product,10 the less "skill, labour and judgment' will have been deemed to go into the fact product and the less likely that fact product is to gain copyright protection.11

In the light of the foregoing, four matters should be considered: the nature of facts, current and near-future trends in fact product protection, the validity of the economic arguments advanced in the Article and a consideration of other non-economic arguments. In connection with the latter, it is important to note that the original Article dealt "exclusively with economic arguments'12 and, given that limiting parameter, it may prima facie appear unfair to shift the debate to areas not addressed: however, as will be demonstrated below, it is simply not possible to take a narrow, purely "free market' economic view of the concept of property, given that it has political, social and cultural dimensions as well.

The Nature of Facts

One implicit assumption in the Article is that facts have some inherent utility that would warrant propertisation. However, in order to see whether this is true, one must first consider the nature of facts.

First of all, there is an "information utilisation' hierarchy to be considered with terminology that often becomes conflated: one must distinguish between "data', the sea of stimuli around us, and "information' which is that data properly processed and presented in order to help us attain "knowledge' and, hopefully from that, "understanding'.13 Concentrating on the first two terms, the essential difference is one of contextual relevance: to meet a given *Ent. L.R. 22 need for knowledge, the package of information presented to the end user must be (1) a suitably defined subset of data which is (2) qualitatively structured.14

The first requirement of a suitable data subset is obvious: if one asks for the time and gets a list of star names, then it is clear that, in the true sense of the word, one has not received information. The second structural requirement is one that can be explained by comparing a randomly shuffled pile of address cards to an address database stored in a computer: the latter has greater information "utility' since a given address can be found more readily and the structuring allows more information to be extracted by virtue of the greater number of correlations between data items that the computer can make.

An alternative way of viewing the structure requirement is to consider the following fact - 24~C. What does this mean? What inherent use is it? It has no meaning or use whatsoever until one is told that it was the temperature in Reading on 14 August 1995. This shows the need for collocation of data to create information: even so linked, the two items are of little utility. It is not until a whole sequence of measurements is completed that uses may be found for this weather "database'.15

In short, a single datum has no inherent use without context and, therefore, lacks any potential value: it is during the act of organising subsets of data that fact "packets' are developed, acquire utility and consequently acquire value. Thus the present copyright/author's right indirect protection scheme which protects the arrangement of facts rather than facts themselves is better modelled on the actual process of information production.

Indeed, it is further arguable that, for reasons of technological change, the originality question is already becoming a "non-issue' in the United States and will become so elsewhere shortly: the nature of fact products is rapidly altering via the introduction of value added data and organisation schemes16 on the Internet, on CD ROMs and so on. The result of this change is that new fact products will vault over the originality threshold with ease.

In conjunction with the foregoing, it is quite proper17 to take account of two more pragmatic considerations: (1) the "real world' fact product protection situation is not so serious to warrant such a radical change and (2) there would be serious practical problems introducing the same.

The US situation

First, the state of play in the United States: to recap, in Rural Telephone v Feist Publishing18 the Supreme Court held that the "White Pages' alphabetical list of subscribers in Rural Telephone's directory (hereinafter "the listing') was not copyright subject-matter because it lacked originality; while the court was not looking for patent-style novelty, originality meant that the work was both "independently created' and "possesse[d] some minimal degree of creativity'.19

Facts, such as subscriber names and numbers, were not, and could never be, protected because they were only discovered and not created:20 it was selection and arrangement of facts that had to be focused on and, even here, the listing failed since a bare A to Z listing pattern lacked the necessary creative spark.

Immediately following Feist, producers reacted negatively: it was said that "[the decision in] Feist pose[d] a serious problem for the proprietors of [fact products] such as databases'21 since many fact products, like the listing, had no real arrangement by virtue of their simple structures, had no selection pattern as such by virtue of being valued for completeness rather than deliberate exclusion of contents and had contents that were not in themselves capable of garnering copyright protection.

An additional US-specific concern which prospectively compounded the problem was also raised: the possibility of developing alternative systems of rights based either on future state legislation or existing state common law was not possible because of federal pre-emption22 under section 301(a) of the Copyright Act 1976 which provided that state rights "within the general scope of copyright' were null and void after 1 January 1978.23

Was the instant concern expressed by producers justified? In relation to the basic question of the originality threshold, the answer is clearly "No'. First of all, if one looks to the situation before Feist, while some Circuit Courts of Appeal had adopted a "sweat of the brow' originality test similar to the UK's "skill, labour and judgment' test, others had adopted a higher threshold requiring subjective judgment and selectivity in choosing items to list.24

On this basis, from the early years of the 20th century onwards25 the average level of the US originality threshold was higher than that of the United Kingdom and, on the Article's model, should have ultimately resulted in a lower rate of fact product production than in the United Kingdom: yet in 1989, the baseline year that the Article mentions,26 while the United Kingdom enjoyed an approximate 9 to 13.5 per cent share of the world database fact product subsector that year worth *Ent. L.R. 23 between $1 and 1.5 billion, the United States enjoyed a 56 per cent share worth over $6 billion.27

Clearly, therefore, in practical terms the US originality threshold pre-Feist did not have any appreciable effect on US fact product production: if anything, the figures underplay the US lead since they do not reflect such factors as the dominance of US corporate subsidiaries in the supposed "UK' database production figures, the United States' general dominance in the necessary computer hardware/software fields and the ease of adoption of US material in the United Kingdom by virtue of a shared language.

Nor, it must be said, did producers' fears crystallise into significant protection problems after Feist. Although the courts have clearly adopted the rule that the key protection issue is "not whether there is overlap or copying of [factual content] but whether the organizing principle is substantially similar',28 the spark of creativity required for fact selection and/or arrangement is not very bright: such dazzling gems as the business categories of a Yellow Pages telephone directory29 and the average price tables in a "Red Book' manual of used car price projections30 have been held to be acceptably "original'.

Finally, it is noteworthy that the assertion made above of the limited impact of Feist is backed up by survey work carried out in late 1992: the trends in post-Feist copyright cases have not worried database producers and few changes in operation have occurred save that they are making somewhat more extensive use of contractual and technological access controls.31 This lack of concern, in turn, has made the federal pre-emption question less important although it appears that the latter point was overstated in any event: as noted by Patry,32 section 301(1)(b) of the US Copyright Act makes it clear that federal pre-emption does not extend to subject-matter that falls outside the Act and that this restriction on preemption was deliberately drafted so that "state law should be allowed the flexibility [to act against] unauthorised appropriation of facts'.33 Furthermore, the possibility of a dual regime of federal protection modelled on the European Database Directive with the sui generis rights element founded on the Constitution's interstate commerce clause has now also been mooted.34

The situation elsewhere: Europe and the draft directive on databases

The Article, like other commentaries before it, draws a distinction between the low threshold of originality of the European common law jurisdictions and the higher standards demanded by author's rights systems in European civil law jurisdictions.35 However, it is strongly arguable that the degree of difference has been greatly exaggerated: although, as Porter36 has noted, the degree of difference for "true' literary and artistic works is supposedly marked as between EC Member States,37 it can be clearly demonstrated that since the mid-1980s protection for factual products such as collections or compilations has adjusted to provide roughly equivalent and quite broad protection of selection and/or arrangement of fact products.

It is true that there have been problems along the way: French law, for example, provided a vague, open-textured originality test which, in operation, was largely a matter of impression of judges at first instance and not subject to appeal. The practical effect of the system was inconsistent decision-making: a football pools coupon was previously held not to be original while a catalogue of dog grooming accessories was.38 However, the Court de Cassation's decision in Microfor v Le Monde39 moved the originality cut-off to a more consistent and generous position: it was clear that the necessary "trace of authorial personality' for French originality could be found in systematic treatment of material to produce indices and other organisational systems.

Even Germany, supposedly the toughest jurisdiction of all on originality, has preserved the effect of a quirky body of inter-War Reichsgericht copyright cases relating to socalled "kleine munze' ("small change') works:40 whereas computer programs were initially exposed to the full blast of "true' literary and artistic work originality requirements akin to novelty in patent law,41 fact products such as collections of test questions42 and trade mark directories43 have been held to be original under a more relaxed version of the "personal intellectual creation' test.

Conversely, copyright protection in UK law is not as overarching as commonly portrayed: in the House of Lords decision of Cramp v Smythson,44 both the selection and contents of a diary information section consisting of various tide and sunrise/sunset tables were held to be not original - in relation to contents, Lord Simon LC pointed out that "one of the essential qualities of such tables is that they be accurate so that there is no question of variation *Ent. L.R. 24 [by way of skill, labour or judgment] in what is selected'.45

If protection is roughly equivalent across the EC Member States (and equivalent to that provided in the United States) then why go to the trouble of creating the draft directive on databases at all: The answer appears to be threefold:

(1) a desire to "lock down' the practical consensus achieved on originality by giving it full legal form,

(2) a desire to harmonise patterns of first and subsequent rights ownership and

(3) a desire to harmonise protection for "unprotected' selection and/or arrangement schemes and contents.

Turning to the latter point, it must be emphasised that it is mainly on protection of sub-original selection/arrangement and factual content that serious divergences of method and scope emerge:46 European civil law jurisdictions other than those of Scandinavia rely on unfair competition,47 European common law countries rely on ad hoc selection from various trade torts such as passing off while the Scandinavian legal systems have a sui generis neighbouring right known as the "catalogue rule';48 this provides carefully limited, copyright-like protection for ten years and, wishing to create a transparent, uniform system of protection, the Commission has clearly taken its inspiration from the latter.49

Again, looking at the actual impact on trade, EC originality criteria have not caused a significant problem: while the United Kingdom's position as a major database provider may be questionable, what is clear is that from an 8 per cent share of the world database market in 1985 (worth a mere $400 million), the EC Member States moved up to a 27 per cent share in 1989 (worth some $3 billion).50

Practical problems of removing originality

Leaving aside the substantial problems of designing suitable transitional provisions, there are three practical matters to consider. The first (and unavoidable) point is that originality and other copyright concepts are firmly interlaced at root:51 even if one disposes of originality, it does not automatically follow that a fact or body of facts could be protected as a "literary work'. If one accepts the definition of that phrase given by Stephenson LJ in Exxon v Exxon Insurance,52 namely that "a literary work [is] something which was intended to afford either information and instruction, or pleasure in the form of literary enjoyment' then it follows that "literary' and "work' will also have to be broadened: if this is done then one rapidly reaches the point where what is left is not copyright law at all but an entirely new form of protection.

Second, the full consequences of propertisation have not been considered: there are hidden costs associated with propertisation that would seriously diminish any economic benefit to either manufacturer or consumer. One important example of this is that, at present, in most circumstances we accept facts at our own risk,53 in other words people cannot and do not believe that everything that they read is truthful and/or accurate. If facts are propertised, then it would only be reasonable on the part of the consumer to expect that facts supplied are of "satisfactory accuracy';54 this could lead to situations where a publisher would be liable for, by way of illustration, faulty information on toxicity of mushrooms55 which would have "knockon' effects such as a need for insurance and product price rises to cover the necessary premiums.

Finally, there is the "real world' effect of copyright litigation to consider: although the Article argues that, in the absence of originality, independent creation of identical fact products is possible,56 in practical terms, the marketing of a rival fact product with the same or substantially similar factual content would give rise to an almost irrebuttable presumption of copying.57 Thus, perversely, removing originality would result in the substitution of de facto novelty which, in turn, would lead to the creation of monopolies.

Exceptional products?

Before leaving purely practical considerations, attention needs to be given to two types of fact product that the Article treats as peripheral examples which might cause problems under the new protection scheme: those where the source material is no longer extant and those where the source material itself is protected.58

The first problem is that, taken together, these two categories in fact represent a significant portion of the sum total of fact products in both quality and quantity terms: looking at the first category alone, it is clear that, besides purely historic fact products such as the hypothetical directory of businesses in London in 1900, census returns, weather statistics, stock market prices and any other fact product with an extended chronological sequence will fall into this supposedly "exceptional' category.

The second problem is that the justifications offered for inclusion of these examples under the umbrella of the new protection scheme are suspect as weak and self-contradictory: in relation to those products where the source material is no longer extant, for example, the Article says that refusing copyright in facts "serves only to penalise those who by their skill, industry and foresight, have taken the trouble to preserve a version'59 which is equivalent to saying that those who produce (first) should be rewarded - an argument condemned elsewhere as faulty justification for originality and the conferral of copyright protection.60

*Ent. L.R. 25 The final problem is that the solution suggested for these and other problem areas - the application of antitrust/competition law in the copyright domain61 - is recognised by economists and others as un unpredictable, difficult and potentially dangerous solution.62 The danger lies in over- or under-applying anti-trust/competition law, a danger that comes from the enormous complexity of having to decide whether, in each individual case, the nature and/or utilisation of a particular copyright is in fact anticompetitive.63

Tackling Economic Theory: Confusion Under Order

All economic arguments rest on assumptions and those contained in the Article, are, like any others, open to question. In tackling the economics of originality removal, three areas must therefore be considered: the assumptions on which the Article is based, the economic model deployed and the conclusions drawn therefrom.

For example, one assumption made is that denying copyright protection increases costs as and when producers are forced to look for product protection under other "umbrellas' such as unfair competition:64 it could equally well be argued that producers have always worked under a split system and, given such operational familiarity, any costs associated with it were absorbed long ago with the result that the costs of migrating to a new system would outweigh any residual effects of the old.

However, the most important cost assumption implicit in the "standard model'65 adopted is that the cost of copyright protection is lower than the cost incurred through reliance on alternative protection such as trade secrecy or through practical measures such as rapid marketing, technological protection and so on: this has been seriously questioned and has led other "free market'-oriented law and economics commentators to devise quite a different model.66 In his seminal article, Breyer67 argued equally plausibly that there is no need for copyright protection at all: natural features of the fact product market such as publisher lead time, profits derived therefrom and fears of predatory price wars68 would all suffice to perform the market maintenance function claimed for copyright. From this it is clear that economics on its own can no more give a single, definitive solution to the problem of fact product protection than the "soft social sciences' so heartily condemned by Veljanowski.69

Turning to model-derived conclusions, the major advantage claimed for fact propertisation is that it will lead to more new facts coming onto the market:70 while this may be true, the de facto monopolisation and hidden costs of propertisation outlined above will lead to higher prices for fact products with the end result that the average consumer will not be able to afford the new products and may even be progressively "priced out' of the market for updated versions of the older ones.

The Final Assumption: Property as Free Market Mechanism

Another core assumption in the Article is that property is a single, unified and absolute concept which exists as free market component and which is refused or restricted only in extremis;71 this is incorrect in all respects.

First of all, property is not a single concept: adopting Hohfeldian analysis, Gordon72 has identified five basic attributes which mark out "property': the right to exclude, the right against harm or interference, the right of benefit yielded from property, the power of transfer and the privilege of use.73

Second, property is not a unified concept: taking account of the inherent differences of subject-matter which they have to cover, property laws have evolved separate and specific features relating to identification and delimination of each type of subject-matter, initial and subsequent ownership74 and so on. The reason for the differences is that each system, once set in motion, has "autopoesis', a set of policy constraints and internal dynamics unique to it;75 given this, analogies between different property types should be carefully drawn at a very abstract level (if at all).

Third, property is not an absolute concept: property rights have always been imbued with considerations of morality or public policy since, ultimately, "property rights serve human values. They are recognised to that end, and are limited by it'.76 Today numerous market inefficiencies are still tolerated for reasons of social or cultural welfare in many instances such as limitations on free use of land77 or lack of property in the human body.78 In truth, there has never been a complete "web' of propertisation and, taking the example of land alone, the tendency in the post-War period has been to favour public non-property interests more not less:79 one may readily count environmental controls, the massive expansion of planning laws and the imposition of public health and safety measures under this rubric.

*Ent. L.R. 26 In short, it is because of the inclusion of other considerations by virtue of property's relative nature that it is wrong to think of property as a creature of the free market: while it is arguably a necessary underpinning for market operation,80 it does not exist solely or mainly for that purpose. However, that leaves one matter unresolved: what does the property conferred by copyright exist for and what are its constraints?

Leaving the Marketplace Behind: Copyright Redux

Copyright has always provided a limited proprietary interest because it was only ever intended to be one mere stimulus to produce81 and not a cast-iron guarantee of appropriation of market value: apart from originality there are numerous other cut-offs such as limited duration82 and permitted or fair uses that cut across copyright operation. Author's rights systems do not even go this far but simply take a "non-market' view of the property conferred as a species of human right reflecting the dignity of human intellectual labour.

Thus limitations on the property rights conferred under either system are not flaws: they are an integral part of what is offered up. In relation to copyright, "the primary objective of copyright is [to encourage] others to build freely upon the ideas and information contained in a work'.83

The Feist quote above makes the point that development in the arts, education and entertainment is accretive rather than revolutionary in nature: copyright and author's rights are loose, quasi-monopolies that allow us to recycle literary, dramatic and artistic motifs in new and exciting ways.

The accretive nature of cultural artefact production also forms a major part of the explanation for non-propertisation of facts: by allowing everybody84 to copy facts, new information can be created or mistakes corrected.85 These advantages were recognised by Lord Mansfield CJ as early as 1785: in the case of Sayre v Moore,86 the plaintiff complained that the defendant had copied the contents of four of his maps. The assertion was true but Lord Mansfield rejected the infringement claim as a result of taking account of the fact that the four maps had been condensed to one, depth errors removed and the whole recast in more accurate Mercator projection; these were rightly taken to be "advancements in knowledge and ship safety' worth more than protecting the basic property right at issue.87

A related constraint on copyright derives from the social and cultural facets of human rights law: as Plowman and Hamilton88 put it:

In most countries, social and cultural developments have resulted in an increased need to use [material] for public service such as education, research and administration. Policies in the field of intellectual property rights must, therefore, be defined in relation to policies for education, culture, information and communications generally 89

The non-binding but influential90 Universal Declaration of Human Rights 1948 ("UDHR') recognises both public and private interests but, unfortunately, does not actually resolve the problem of the balance between the two91 since Article 27 simply states:

(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and share in scientific advancement and its benefits;

(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author

Looking elsewhere in the human rights sphere, two concerns immediately stand out: freedom of expression and rights to education. Looking at the former, it has long been recognised that copyright, if overdeveloped, is a potential enemy to the various species of freedom of expression such as accurate and full news coverage:92 the First Amendment to the US Constitution and Article 10 of the European Convention on Human Rights93 both stand to be infringed if copyright is asserted over facts.

Looking at education, it is noteworthy that, although a right to education has not been fully recognised,94 the copyright conventions have given limited recognition to the need to reproduce protected material for educational purposes: it is submitted that facts are so vital to education that no monopoly or quasi-monopoly should even be contemplated. After all, ignorant, misinformed or propaganda-sated citizens are ultimately the gravest danger to the economic and social well-being of any nation: despite the Article's allusion to the economic failure of the USSR through non-propertisation,95 it is worth remembering that the free market did not prevent the Bolshevik Revolution occurring in the first place.

Ent. L.R. 1996, 7(1), 21-26

_____________________________________________________________________

Sherwood-Edwards, "The Redundancy of Originality', [1995] 3 ENT.LR 94.

Patchy because (a) originality will always serve to prevent some fact products from being protected by copyright and (b) there are qualitative tests of (supposedly) varying degrees of severity in the United States (least stringent), France and Germany (most stringent) which could lead to a fact product being protected in one country and not in another; see Article, ibid., (in particular "Originality as creativity', "Originality as creation' and "Originality as labour') at 102 to 104.

Ibid., at 96.

The Article, ibid., suggests two exceptions - where facts are no longer publicly accessible and where source access to a particular set of facts is restricted; both of these exceptions will be considered below.

Ibid., at 94, note 4, and 95.

Either other legal means (for example unfair competition) or, presumably although not mentioned, technical means (for example anti-copying "spoilers' in recordings); ibid., at 100.

Ibid., note 45.

Ibid., at 101.

Ibid.

10.

For example by automation of fact gathering and collation.

11.

Article, ibid., at 104.

12.

Ibid., at 95.

13.

Benyon, Information and Data Modelling, Blackwell Scientific, 1990, at 5 onward.

14.

See, further, Stamper, "Towards a Theory of Information', 28(3) Computer Journal 195 (1985).

15.

For example for newspapers and television to say that this has been the hottest summer since 1659.

16.

For example hypertext linking of data files, pictures and sounds.

17.

Although the Article asserts that its aim is to look at the possibility of "copyright in facts (or information) per se, irrespective of selection or arrangement [in compilations and so on]' (Note 1 above, at 94 and 95), much space is taken up with coverage of the present indirect protection system debate engendered by the US Supreme Court decision in Feist v Rural Telephone and the drafting of the EC Database Directive.

18.

113 L.Ed. 2nd 385 (1991).

19.

Ibid., at 369.

20.

Ibid., at 370; although for an interesting philosophical argument to the contrary (namely that facts are created and are thus original) see Gordon, "Reality as Artifact', 18 Rutgers Comp. & Tech. LJ 731 (1992).

21.

Schwarz, "Feist v Rural Telephone: Case Comment', [1991] 5 EIPR 171, at 181.

22.

The principle whereby if federal law exists and is validly based on a provision of the US Constitution, states cannot validly legislate within the area that federal law covers: see, as a working example in the copyright sphere, Goldstein v California (1973) 412 US 546.

23.

See Ginsburg, ""No sweat?": Copyright and Other Protection for Works of Information after Feist v Rural Telephone ', 92 Col. LR 338 (1992).

24.

The split between Circuits adhering to each standard was approximately half and half: see Ginsburg, "Creation and Commercial Value: Copyright Protection and Works of Information', 90 Col. LR 1865 (1990).

25.

That is, from the time of initial Supreme Court consideration of the originality threshold in Bleistein v Donaldson Lithographic 188 US 239 (1903).

26.

Article, Note 1 above, 105.

27.

Figures collated (or should that be "pirated'?) from paragraph 2.1.5 to 2.1.24, Explanatory Memorandum (original draft EC Database Directive) and Sandison, "EC Database Directive', 21 Copyright World 22 (1991).

28.

Key Publications v Chinatown Today Publishing 945 F.2d 509 (2d Cir. 1991) - directory of Chinese community business contacts held not infringed because, although 75 per cent contents copied, the allegedly infringing KP directory had 260 categories against Chinatown's 28.

29.

BellSouth Publishing v Donnelly Information 933 F.2d 952 (11th Cir. 1991), reversed on other grounds 999 F.2d 1436 (1993) it transpired that the defendant had created new directory categories to the point that only the unprotected entries were copied.

30.

CCC Information Services v Maclean Hunter Market Reports 33 USPQ 2d 1183 (2d Cir. 1994).

31.

See Sheils et al., "What's all the Fuss about Feist ?', 17 Dayton LR 563 (1992) and Reichman, "Electronic Information Tools: The Outer Edge of World Intellectual Property Law', 17 Dayton LR 797 (1992) respectively.

32.

"Copyright in Compilations of Fact or "Why the White Pages are not Copyrightable" ', 12(4) Comms. & the Law 37 (1990).

33.

Ibid., quoting HR Rep. 94 132 (1976).

34.

See tentative comments in Samuelson, "The Originality Standard for Literary Works under US Copyright Law', 42 Am. J Comp. Law (Supp., Part I) 393 (1994) - the Semiconductor Chip Protection Act 1984 is a germane example of prior sui generis protection.

35.

Note 1 above, at 102 to 104.

36.

"Copyright and Information Limits to the Protection of Literary and Pseudo-literary Works in the Member States of the EC', Office for Official Publications of the CEC, Luxembourg, 1992.

37.

Ibid., at 12 to 66.

38.

See Henault v Puliplast [1983] RIDA 117 (Cass. Crim.).

39.

Cour Cass., Ass. Plen., 30 October 1987.

40.

See Hugenholtz, "Chapter 3: Protection of Compilations of Fact in Germany and the Netherlands' in Dommering and Hugenholtz (eds), Protecting Works of Fact, Kluwer, Deventer, 1991.

41.

Although no longer thanks to the EC Software Directive. However, it is interesting to note that the Federal Supreme Court had begun to relax the originality test even before the Directive came into force; Gunter et al., "The German Implementation of the EC Directive on Software Protection' 9(4) CLSR 197 (1993).

42.

[1981] GRUR 520.

43.

[1987] ZUM 525.

44.

[1944] AC 335.

45.

Ibid., at 339.

46.

The Article incorrectly states that protection is homogeneously achieved other than in the United Kingdom via unfair competition; Note 1 above, at 105.

47.

For example [1963] Rev. Trim. Droit Comm. 578 (Fr.).

48.

See Karnell, "Chapter 4: The Nordic Catalogue Rule' in Hugenholtz and Dommering (eds), Protecting Works of Fact, Kluwer, Deventer, 1991.

49.

Indeed, a ten-year term was stipulated in the original draft.

50.

Figures collated as at Note 27 above.

51.

Contra the Article, Note 1 above, at 95.

52.

[1982] Ch. 119.

53.

An important exception in English law is where misrepresentations are made; see Derry v Peek (1889) 14 App. Cas. 337 (fraudulent misrepresentation), Hedley Byrne v Heller [1964] AC 465 (negligent misrepresentation) and the Misrepresentation Act 1967.

54.

See Nimmer and Krauthaus, "Information as a Commodity: New Imperatives, 55(3) Law & Contemp. Probs. 103 (1992), at 125 onward.

55.

See Winter v G P Putnams & Sons 938 F.2d 1033 (9th Cir. 1991) (no liability under the present regime).

56.

Note 1 above, at 97.

57.

Avoiding liability would be only possible, it is submitted, by keeping detailed and costly logs of fact gathering and organising operations; this would, of itself, create significant barriers to entry in competition.

58.

Note 1 above, at 97.

59.

Ibid., at 97.

60.

Ibid., at 101.

61.

Ibid., at 98 and 106.

62.

See the critique of the competition/copyright interaction in Article 6 (decompilation right) of the EC Software Directive in Schmidtchen and Koboldt, "A Pacemaker that Stops Halfway', 13 Intl. R Law & Econ. 413 (1993).

63.

See the new approach adopted in the ECJ's decision in the Magill litigation; Vinje, "The Final Word on Magill ', [1995] 6 EIPR 297.

64.

Note 1 above, at 100.

65.

66.

Of course, socialists and Marxists would argue that one should look away from the market altogether and rely on state provision such as grants or stipends.

67.

"The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies and Computer Programs', 84 Harv. LR 281 (1970).

68.

Ibid., at 291 onward.

69.

The Economics of Law, IEA, London, 1990.

70.

Note 1 above, at 99.

71.

Ibid., at 102.

72.

73.

Ibid., at 1354 onward.

74.

Compare rules relating to ownership of rights in commissioned copyright works and commissioned registered designs under UK law; section 11(1) CDP 1988, section 2(1A) RDA 1949 (as amended).

75.

Hamilton, "Appropriation Art and the Imminent Decline in Authorial Control over Copyrighted Works', 42 J. Copr. Soc'y 93 (1994) at 108 onward.

76.

State of New Jersey v Shack 277 A2d 372 (1971) at 374; quoted in Gray, "Property in Thin Air', [1991] CLJ 252 at 297.

77.

Denman, The Place of Property, Geographical Publications Ltd, Berhamstead, 1978.

78.

Munzer, A Theory of Property, Cambridge University Press, 1990.

79.

Harris, "Private and Non-private Property: What is the Difference?', 111 LQR 421 (1995).

80.

Although see Breyer's argument at Notes 67 to 68 above.

81.

See the preamble to the Statute of Anne 1709 - the Article is somewhat confused on the point of incentive since it both conflates the notion of copyright as incentive and reward and condemns it (Note 1 above, at 101) and endorses the incentive effect of property conferral in tangibles (ibid., at 98).

82.

Despite the recent increase to "life plus 70' under EC harmonisation measures, the protection is not yet of indefinite duration like chattels; for a good argument that the term should be reduced, see Puri, "the Term of Copyright: Is it too Long in the Wake of New Technologies?', 12(1) EIPR 12 (1990).

83.

Feist, Note 18 above, 369 to 370.

84.

It must be remembered that fact copying is not "one way traffic' as the Article's allusion to theft implies (Note 1 above, at 99) - the lack of protection for facts means all producers may copy each other's facts and are thus playing "on a level playing field'.

85.

This explains the supposed oddity of recycling facts alluded to in the Article at page 99.

86.

(1785) 1 East 361 note 1.

87.

For a more mundane but modern example of property pre-emption in UK copyright law on public policy grounds, see the introduction of the concept of "non-derogation from grant' in BL v Armstrong Patents [1986] RPC 279.

88.

Copyright: Intellectual Property in the Information Age, Routledge & Keegan Press, London, 1980.

89.

Ibid., at 35.

90.

The precise status of the UDHR is uncertain - there are some arguments that the UDHR has become binding as international customary law; The Universal Declaration of Human Rights, Eide et al. (eds), Scandinavian University Press, Oslo, 1992, at 6 to 7.

91.

92.

Nimmer, "Does Copyright Abridge the First Amendment Guarantee of Free Speech and Press?', 17 UCLA LR 1180 (1970).

93.

See Robertson et al., Human Rights in Europe, Manchester University Press, 1993, at 147 to 157.

94.

Article 26 of the UDHR recognises such a right but it has not been transposed into international conventions on human rights.

95.

Note 1 above, at 99.

In defence of originality by Gary Lea

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