Application to compilations

The practical implications of the understanding of originality obtained can be considered. In relation to compilations, humanly constructed database and bibliographic records emerge as realizations of a minimal degree of creativity. In contrast, mechanical or computational procedures do not endow creativity on their products. In addition, highly routine, although not necessarily solely mechanical, activity in the construction of compilations may not reach the level required for a minimal degree of creativity (as in the case of Rural). Such activity may still have significant costs and could even - possibly, for instance, in the editing of a database - have creativity, but not at the level required for a minimal degree of creativity. The implications for practice of the distinction of a minimal degree of creativity from creativity have been revealed.

A humanly created bibliographic record then emerges as one possible correlate to, or, at least, constituent of, the combination of level required and amount sufficient for a minimal degree of creativity. The level of creativity involved in compilations can be understood as intellectual - independent references to the ‘intellectual labor of cataloging and indexing’ (Wilson, 2001, p. 203) can be found - and also to require specialized training. The combination of level and amount of creativity embodied in a bibliographic record has been connected with certain exchange and monetary values.

Any proper accounting would assign a cost of at least $30 to the work in creating just one of those records [for OCLC World- Cat],

(Hayes, 2000, p. 76)

The cost indicated would correspond or readily aggregate to more than a de minimis quantum of exchange values, in the legal sense of de minimis. Other correlates would then include semantically transformed indexes or other records constructed by human intellectual or specialized activity. Compilations could be protected, under this interpretation where the selection, coordination, or arrangement involves significant interpretation or direct consideration of meaning, which could be revealed in verbal transformations of an indexing language.

The differentiation of a minimal degree of creativity by degree of routinicity from the ‘creative spark ... so trivial as to be virtually nonexistent’ (Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 359), and, further, from direct human engagement with meaning which does not rise to creativity could have significant practical implications. The ‘creative spark ... so trivial as to be virtually nonexistent’ (p. 359) was understood as a real level and amount of creativity below the level required for a minimal degree. Elements of works with creativity below the required level could have amounts of creativity in an ordinary discourse sense, consistently with the implications of ‘spark’ (pp. 346, 359, 363) for amount, but do not become copyrightable, whatever their amount of creativity, as they do not have the requisite level of creativity. Similarly, at further and lower degree of routinicity, Rural’s nonmechanical, but highly routine, activity in the construction of their white pages had significant amount but did not rise to the requisite level of creativity.¹ Extensive editorial work on compilations, then, may not rise to the level of creativity required for copyrightability, whatever its extent or amount.

In its application to compilations, the understanding obtained of originality then promises to discriminate, by copyrightable status, compilations which embody the required level and sufficient amount of human activity motivated by meaning, from compilations with a level corresponding to a de minimis quantum of creativity and from so routine or mechanically generated descriptions without creativity, which would not be copyrightable.