Amount

The amount of creativity at the requisite level which is sufficient for a minimal degree of creativity is also explicitly specified. A ‘slight’ (Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 345) amount or ‘more than a de minimis quantum’ (p. 363) of creativity, with de minim is understandable in a specialized legal sense, is sufficient. ‘[S]light’ (p. 345) and ‘more than a de minimis quantum’ (p. 363) are the only references to amounts of creativity at the requisite level and must then be received as exhaustive. For determining a sufficient amount of creativity at or above the required level, we are concerned with amount in combination with the level required for a minimal degree of creativity.

Level and amount

The combination of at least the level required and the amount of creativity sufficient for a minimal degree is explicitly indicated in the opinion, first directly and ostensively.

if the compilation author clothes facts with an original collocation of words, he or she may be able to claim a copyright in this written expression. Others may copy the underlying facts from the publication, but not the precise words used to present them. In Harper & Row, for example, we explained that President Ford could not prevent others from copying bare historical facts from his autobiography, but that he could prevent others from copying his ‘subjective descriptions and portraits of public figures.’

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

Table 7.1 Creativity and a minimal degree of creativity

(Continued)

Table 7.1 (Cont.)

The precise words, understood to be a product of President Ford’s creative activity at an intellectual level, correspond to the combination of the level required and the amount of creativity sufficient for a minimal degree of creativity. The formulations, ‘an original collocation of words’, and, more intensely, ‘the precise words’ (p. 348), imply a definite order of words. The number of precise words then corresponds to a sufficient amount of creativity at the requisite level. Short (fewer than 10, for instance) sequences are known to be likely to be distinctive, even in very large corpora, from experience of using large collections of text searchable by phrase searching. The distinctiveness of such sequences is also theoretically explicable, from the understanding of the word as ‘a cohesive group of letters with strong internal statistical influences’ (Shannon, 1951/1993, pp. 197-198). A sequence of words would then be a linear concatenation of internally cohesive units, without the internal statistical influences between units. A sufficient amount of creativity, for compilations and other works with added written expression, can then definitively be read directly from the product, from a sufficient number of consecutive words.

The decision then indicates how this minimal degree of creativity is to be embodied in the process of creating compilations, without ‘an original collocation of words’ (Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 349).

Where the compilation author adds no written expression but rather lets the facts speak for themselves, the expressive element is more elusive. The only conceivable expression is the manner in which the compiler has selected and arranged the facts.

(Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 349)

The amount of creativity for compilations without additional written expression cannot be directly read from the number of consecutive words.

The equivalence to the minimal degree of creativity in the precise words can be discerned from an exchange value perspective. Amounts of creativity at the required, level can be understood as equivalent, when they can be fairly exchanged for each other, drawing on a deep sense of exchange value. The amount of creativity embodied in the precise words can be understood to be represented by the exchange, or monetary, values connected with them, from a related and surface, although not superficial, sense of exchange value. An equivalent amount of creativity embodied in compilations without additional written expression can then be understood to be similarly represented by exchange or monetary values closely comparable to those connected with the precise words. Such an understanding of amount is also consistent with a minimal degree of creativity as ‘more than a de minimis quantum of creativity’ (Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 363). Quantum is still understood as an irreducible unit, continuous with its previous interpretation, but with reference to amount rather than to level, and de minimis can be restricted to its specialized sense, of below legal significance. The amount of creativity required, for both compilations with and without additional written expression, can then be understood to be indicated by more than a de minimis quantum of exchange values connected with the product and arising from creative activity at or above the required level.

Synthesis of level and amount

We have then obtained a full understanding of a minimal degree of creativity, first as constituted by a requisite level and sufficient amount of creativity at that level. The requisite level is ‘extremely low’ (Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 345), more than ‘so trivial as to be virtually nonexistent’ (p. 359) and more than ‘a de minimis quantum of creativity’ (p. 363), and can absorb intellectual as a level. The sufficient amount of creativity at or above that level is ‘slight’ (p. 345) and ‘more than a de minimis quantum’ (p. 363). Robust and systematic means of determining the requisite level and sufficient amount have also been developed. The requisite level can be read from the product or by an enquiry into its processes of production. The combination of the requisite level and sufficient amount of creativity at that level, which constitutes a minimal degree of creativity, can then be read from the exchange values connected with the product.

The conditions for a minimal degree of creativity derived from the decision can be recalled. It was required to have a level and for that level to be knowable, from its specification as part of a test for originality. Creativity at the required level must also give rise to an amount significant for copyrightability and amount should be discernible. The identification of the level required as intellectual, and as readable from the product or by an enquiry into its conditions of production, fulfills the requirement for a testable, or sufficiently knowable to be testable, level. The possibility of determining the sufficiency of amount, from the exchange values connected with the combination of level and amount in the end product, renders amount discernible. A minimal degree of creativity, as realized in compilations, is then itself discernible. The understanding of a minimal degree of creativity then meets all the conditions derived from the decision and is thereby sufficient.