Incentive role

Critiques of the decision considered that it grossly neglected the incentive function of copyright and that an incentive to prompt the production of databases may still be required (Ginsburg, 1992, pp. 341, 350). On the interpretation established here, that a minimal degree of creativity necessarily involves intellectual labor, the incentive role of copyright for intellectual labor is fully restored. More routine and also mechanical forms of mental labor, which both on the Feist decision and in other widely diffused understandings, would not by themselves have given rise to property pre-Feist, are deliberately excluded from originality and copyrightability (a copyright owner could still exercise those forms of labor, in addition to intellectual labor, without endangering their claim to property). Restoring the incentive role of copyright for intellectual labor provides incentives or protection adapted to a significant source of experienced real costs.

We can then regard the incentive role of copyright as restored and turn our attention to the consonance with natural justice, which tended to flow from that incentive role.

Consonance with natural justice

Critiques had also, both for copyright and specifically in relation to Feist, observed that the law needs to be in accord with natural justice, if it is to survive, and to be enforced by the courts. For copyright, natural justice rested strongly on the protection offered to the products of an author’s intellectual labor. Restoring the incentive role of copyright for intellectual labor then brings the decision into accord with pre-existing conceptions of natural justice.

The understanding of originality obtained can be revealed to be consistent with informal judgments of ownership of intellectual property, derived from conceptions of natural justice. For instance, if a text was spell checked by a different individual from its original author, the original author would normally be considered the natural owner of property in the text, on the basis of their higher level and greater amount of creativity.

We can then regard consonance with natural justice as largely restored.

We can now consider how this understanding can be applied to compilations.