Introduction: the convergence of the twain

Introduction

The Supreme Court of the United States denied copyright protection to telephone white pages, and thereby to similar compilations or collections of data, for their lack of creativity in 1991 in Feist Publications, Inc. v. Rural Tel. Service Co. (Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991). The judgment specified that compilations or databases, and other works, must have a minimal degree of creativity to be copyrightable. The decision has been widely regarded as the most significant of modern intellectual property decisions for the information or digital age (Goldstein, 1991). Creativity is not directly elucidated and remains poorly understood. Creativity was described, as recently as 2012, as ‘the sine qua non and the je ne sais quoi of copyright’ (Bridy, 2012, p. 9) [the without which nothing and the I know not what of copyright]. No satisfactory reading of the decision has been made, in the nearly 30 years since it was issued. Establishing an understanding of creativity remains a live issue and is a compelling task.

In the introduction here we progressively address the decision, including its relation to the digital age, the reading of the decision to be developed, the approach on which that reading rests, and the structure of the subsequent work, including the use of narrative motifs. Finally, we conclude on the harmony the work enables for the convergence of copyright with the digital age.

The decision

For the decision, we distinguish its significance, diffusion, continuing status as law and the implications of this, the circumstances and progress of the case, and the decision’s relation to the digital age.

Significance

The decision dismissed ‘sweat of the brow’ or ‘industrious collection’ (Feist Publications, Inc. v. Rural Tel. Service Co., Inc., p. 352) as the criterion for intellectual property, insisting on creativity and originality as the constitutional requirement for copyright. The dismissal of industrious collection places it in tension with the often dominant labor theory of copyright, which had demonstrated its utility by its long endurance and wide diffusion for over 200 years in the United States and in other jurisdictions (Ager v. Peninsula, 1884; Breyer, 1970, pp. 284-285), whatever its imperfections (Breyer, 1970).

Elevating creativity to a constitutional requirement for copyright (Narayanan, 1993-1994, pp. 341, 350; Raskind, 1991-1992, pp. 331-334; Ver-Steeg, 1995, p. 586) and the dismissal of industrious collection was received as both highly significant and extremely disruptive. The Supreme Court was characterized as having ‘dropped a bomb’ on United States copyright law by the then Register of Copyrights, in testimony before the House of Representatives (Copyright Act Hearing, 1991; also quoted in Samuelson, 1992, p. 27; Polivy, 1997-1998, p. 782). In an analogous contemporaneous image -‘[l]ike the proverbial handful of pebbles dropped in a pond’ - the Feist decision was described as having ‘the potential over time to generate a series of widening, if not necessarily concentric, consequences for the basic doctrines of copyright law’ (Raskind, 1991-1992, p. 331).

The disruption and discontinuity - ‘dropping] a bomb’, the potential for multiple interpretations - ‘not necessarily concentric [,] consequences’, and the extensive diffusion - ‘widening ... consequences’, vividly anticipated by commentators immediately subsequent to the decision have since been amply fulfilled. The discontinuity implied by the term ‘post’ is matched by the significance of the discontinuity and of Feist itself, understood as the ‘now-governing case’ (Nimmer and Nimmer, 1978/2020, 13.01n.5.1). Disruption and discontinuity for subsequent copyright practice is confirmed by current references to the ‘post-Feist era’ in the major treatise by Nimmer and Nimmer (1978/2020, 1.01[B][2][b]n.48).

The absence of concentricity from the consequences of the decision for copyright law is revealed in the contrasting interpretations developed by different circuits (Polivy, 1997-1998). Commentaries also attribute an intention to the Supreme Court of encouraging a unified interpretation of property in data by the lower courts, although any such intention has been frustrated rather than fulfilled by the diversity of subsequent interpretations.