Review and synthesis

We have identified the major issues raised by critiques of the judgment:

• • the complexity of the judgment is universally agreed;
• • the lack of substantiation of creativity is widely considered a crucial aspect of its complexity;
• • a tension with previous understandings of copyright has been detected;
• • the incentive role of copyright is considered to have been neglected;
• • the appeal to nineteenth-century precedents by the Supreme Court has been regarded as idiosyncratic;
• • at the same time, it is still conceded that any implementation of copyright must be consonant with natural justice.
• • the relation of the decision to the digital age is not frilly specified.
• • the judgment has an uncertain and complex relation to developments in other jurisdictions (particularly the European Union).

Commentaries were published predominantly in the period immediately following the decision, with some diminution in their number in recent years, but the issues they raise remain largely unresolved.

Conclusion

In concluding summary, then, the continuing status of the decision as law and the need for elucidation are recognized. We also reviewed critiques of the decision and registered their concerns, which were primarily with the complexity and difficulty of interpretation of the decision and with its poor delineation of creativity. Further specific issues to be addressed by a counter study were also isolated. An indication of the absence of self-contradiction was derived from the collectivity of critiques and transformed into a presumption of self-consistency, whose particular form awaits revelation.

The task for the work is understood as resolving the criticisms made, through a reading of the decision. A counter critique must accept the complexity of the decision. It should also reduce the appearance of complexity, while remaining comprehensive with regard to the decision, revealing its structure and preserving distinctions in that revealed structure. The analysis can be conducted on the presumption of an underlying internal conceptual coherence.

On the basis of the need for elucidation and of presumption of self-consistency, we can construct a reading of the decision which can then be reviewed in relation to the criteria we have established for our counter study.

We begin, in the next chapter, with an account of what could usefully be called, the conceptual structure of the decision. The structure hidden behind or disguised by the apparent complexity will be revealed.

References

Aune, D.E. (1987). Oracles. In M. Eliade (ed.). The encyclopaedia of religion (vol. 2, pp. 80-87). New York: Macmillan.

Branscomb, A.W. (1994). Who owns information'¹! From privacy to public access. New York: Basic Books.

Bremmer, J. (1987). Delphi. In M. Eliade (ed.). The encyclopedia of religion (vol. 4, pp. 277-279). New York: Macmillan.

Clifford, R.D. (2004). Random numbers, chaos theory, and cogitation. A search for the minimal creativity' standard in copyright law. Denver University Law Review. 82, 259-299.

Feist Publications, Inc. v. Rural Tel. Service Co., Inc. (1991). Feist Publications, Inc. v. Rural Tel. Service Co., Inc. 499 U.S. 340 (1991).

Gervais, D.J. (2002). Feist goes global: A comparative analysis of the notion of originality' in copyright law. Journal of the Copyright Society of the U.S.A. 49, 949-981.

Ginsburg, J.C. (1992). No ‘sweat’? Copyright and other protection of works of information after Feist v. Rural Telephone. Columbia Law Review. 92, 338-388.

Goldstein, P. (1991). Copyright. Journal of the Copyright Society of the U.S.A. 38, 109-122.

Greetham, D. (1996). The telephone directory' and Dr. Seuss: Scholarly' editing after Feist versus Rural Telephone. Studies in the Literary Imagination. 29, 53-74.

Gupta, I. (2017). Footprints of Feist in European Database Directive: A legal analysis of IP law-making in Europe. Singapore: Springer.

I Ching (32/2003). I Ching or Book of changes. The Richard Wilhelm translation, rendered into English by' Cary' F. Baynes. Foreword by' C.G. Jung. Preface to the Third Edition by H. Wilhelm. London: Penguin.

Judge, E.F. and Gervais, D. (2010). Of silos and constellations: Comparing notions of originality' in copyright law. Cardozo Arts and Entertainment. 17, 373-407.

Narayanan, A.S. (1993-1994). Standards of protection for databases in the European Community' and the United States: Feist and the myth of creative originality'. George Washington Journal of International Law and Economics. 27, 457-500.

Parke, H.W. and Wormell, D.E.W. (1956). The Delphic Oracle. Volume I: The history. Volume II: The oracular responses. Oxford: Basil Blackwell.

Price, S. (1985). Delphi and divination. In P.E. Easterling and J.V. Muir (eds). Greek religion and society (pp. 128-154). Cambridge: Cambridge University' Press.

Raskind, L.J. (1991-1992). Assessing the impact of Feist. University of Dayton Law Review. 12, 331-344.

Resnik, D.B. (2003). Strengthening the United States’ database protection laws: Balancing public access and private control. Science and Engineering Ethics. 9, 301-318.

Strong, W.G. (1994). Database protection after Feist v. Rural Telephone Co. Journal of the Copyright Society of the U.S.A. 42, 39-67.

VerSteeg, R. (1995). Sparks in the tinderbox: Feist, ‘creativity’, and the legislative history of the 1976 Copyright Act. University of Pittsburgh Law Review. 56, 549-588.