Application to compilations

The understanding of a minimal degree of creativity as constituted by a required level and sufficient amount at that level of creativity, and the confirmation of its basis in the Constitution, enables the application of a minimal degree of creativity to compilations.

Factual compilations ... may possess the requisite originality.

(Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 348)

Factual compilations can, then, have a minimal degree of creativity, as part of the requirement for originality. The condition under which they can obtain originality is then indicated.

The compilation author typically chooses which facts to include, in what order to place them, and how to arrange the collected data so that they may be used effectively by readers. These choices as to selection and arrangement, so long as they are made independently by the compiler and entail a minimal degree of creativity, are sufficiently original that Congress may protect such compilations through the copyright laws.

(p. 348)

‘[S]o long as’ (p. 348), which connects ‘a minimal degree of creativity’ to ‘originality’ (p. 348) indicates that ‘a minimal degree of creativity’ (p. 348) is included in originality. It is also verbally identical in its substantive terms to the initial reference to ‘some minimal degree of creativity’ (p. 345). It must then be equivalent to ‘some minimal degree of creativity’ (p. 345).

Elements of compilations which are not additional written expression can embody a minimal degree of creativity.

a directory that contains absolutely no protectible written expression, only facts, meets the constitutional minimum for copyright protection if it features an original selection or arrangement.

(Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 348)

For such elements a minimal degree of creativity is recognized as ‘elusive’ (p. 349). Elements of compilations without original expression can, then, have a minimal degree of creativity only through the selection and arrangement of data.

‘[S]ome minimal level of creativity’ (Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 358) is distinguished for elements of compilations without original written expression.

Originality requires ... that it display some minimal level of creativity.

(Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 358)

The level of creativity referred to in ‘some minimal level of creativity’ (p. 358) can be understood as meeting the level required for a minimal degree of creativity, from the governing of the ‘some minimal level of creativity’ by ‘originality’ in, ‘[o] riginality requires’ (p. 358). On an understanding of ‘requires’ (p. 358) as semantically included in ‘means’ in ‘[o]riginal ... means’ (p. 345), the reference here to a minimal level of creativity, rather than to a minimal degree of creativity (understood as a requisite level and sufficient amount at that level of creativity) is consistent with the meaning of originality as including a minimal degree of creativity. ‘[S]ome minimal level of creativity’ (p. 358) then corresponds to the level required for a minimal degree of creativity (and not to the combination of requisite level and sufficient amount). Level alone is cited, not level and amount in combination, or amount alone. Priority is then again given to level over amount.

The proportion of compilations which can be expected to be above the level required is next specified.

some minimal level of creativity ... Presumably, the vast majority of compilations will pass this test, but not all will.

(Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, pp. 358-359)

The particular passage, as quoted immediately above, also closely verbally parallels, while varying, the previous passage treating works. The passage can be recalled.

at least some minimal degree of creativity ... To be sure ... [t]he vast majority of works make the grade quite easily

(p. 345)

It can also be placed in a revealing parallel with the current passage. Some significant contrasts emerge.

• • Compilations (p. 359) are specified rather than ‘works’ (p. 345), which included compilations.
• • For compilations the immediate reference is to the required level, not directly to the proportion with the requisite level and sufficient amount for a minimal degree of creativity.
• • ‘Presumably’ (p. 359) implies a similar, although possibly not quite as strong, degree of confidence to ‘[t]o be sure’ (p. 346), but leaves open the basis for that confidence rather than implying a basis in accepted practices.
• • ‘[V]ast majority’ (p. 359) can be read continuously in meaning with the previous reference to the ‘vast majority’ (p. 346), with compilations also considered as separate entities.
• • ‘[T]est’ in ‘will pass this test’ implies that the level of creativity must be testable, although the qualification by ‘[presumably’ (p. 358) leaves open how the level is to be rendered testable. In contrast, ‘make the grade quite easily’ (p. 345) implied a readily discernible interval with regard to level and amount and did not specify a test.
• • The proportion of compilations below the required level - ‘not all’ (p. 359) -is explicitly specified rather than left implied, as it had been for works.

There is then a concern with compilations rather than works, with level rather than level and amount combined, a similarity in the degree of confidence, a difference in the basis for that confidence, an identity in the proportion stated, and a

A minimal degree of creativity 113 contrast in the requirement for testability compared to the implication of an extensive and readily discernible interval, and an explicit statement that some compilations will be excluded from copyrightability (see also Box 7.1).

Box 7.1 Comparison of corresponding passages

Note: Clauses are placed in parallel with corresponding clauses: equivalent clauses are given in ordinary black, the more inclusive or positive sense of parallel clauses in bold and the weaker or less inclusive sense in italics.

The nature of the population with regard to creativity is then specified for works (‘works’ (p. 359) and not just compilations) which will not pass the test for the requisite level.

There remains a narrow category of works in which the creative spark is utterly lacking or so trivial as to be virtually nonexistent. See generally Bleis-tein v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903) (referring to ‘the narrowest and most obvious limits’). Such works are incapable of sustaining a valid copyright.

(Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 359)

‘[R]emains’ in ‘[t]here remains’ (p. 359) indicates an immediate transition between the levels without a boundary which occupies a significant interval. A further category of works with levels of creativity below the level of creativity required for a minimal degree is distinguished (pp. 358-359). ‘[S]park’ in ‘the creative spark’ (p. 359) can continue to be understood as a level and amount of creativity, although at a level below that required for a minimal degree of creativity. From the implications of the material basis of spark for level and amount works below the required level could have amount in an ordinary discourse sense.

In summary, then, compilations without original written expression can have a minimal degree of creativity through their selection and arrangement of data. The ‘minimal level of creativity’ (p. 359) distinguished for such compilations corresponds to the level required for a minimal degree. The decision further indicates the possible proportion, ‘the vast majority’ (p. 359), of compilations above that level, with a discernible systematic variation on the treatment of the proportion ofall works with a minimal degree of creativity. Compilations and works which cannot give rise to copyrightability are primarily differentiated by level from works which can be copyrightable.