Supreme Court rules directories are not covered by copyright unless 'original'

March 28, 1991|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- Publishers of directories, including telephone books, got a strongly worded message from the Supreme Court that they will get no protection from federal copyright law for the effort they put into compiling their data.

In a unanimous ruling, the court's first major ruling on the way a 1976 copyright law applies to directories, the justices went to unusual lengths to denounce the notion that the work of compilation is to be rewarded with copyright.

Justice Sandra Day O'Connor devoted 19 of the 23 pages of her opinion to denouncing what has been called "the sweat of the brow" doctrine of copyright law. That phrase has meant that a compiler of data is to be considered to have created something worth copyrighting just by gathering up the facts.

Over and over again, the O'Connor opinion stressed that the doctrine never was a valid one under copyright law and that Congress had definitely laid it to rest in adopting the latest copyright law in 1976.

To be eligible for any copyright protection, the court ruled, a directory must be not only a compilation of data, it must also be puttogether in an arrangement that is truly "original." Then, only the original arrangement gets copyright protection, not of the data that is included, the court stressed.

"It is not enough for copyright purposes," Justice O'Connor wrote, "that an author collects and assembles facts."

The end-product must get over two other hurdles beyond mere compilation, she declared for the court. One is that the data that is published must be put together in its own arrangement. The other requirement is that the arrangement must be "original" -- that is, something that reflects at least some creative input.

But, the opinion stressed, a mere alphabetical arrangement of the data is not enough to earn copyright protection. "The creative spark is utterly lacking" in that kind of arrangement, the court concluded.

It thus overturned a ruling by a federal appeals court a year ago that said it is a copyright violation to copy the basic listings in a telephone directory: the names, arranged alphabetically, along with the addresses and telephone numbers.

No matter how much "sweat of the brow" had gone into compiling that data, the Supreme Court ruled, it was not copyrightable.

The ruling was a victory for Feist Publications Inc. of Cimarron, Kan., which had been sued for copyright infringement for copying 1,309 listings in a copyrighted telephone directory published by a local phone company, Rural Telephone Service Co.

Feist publishes a regional telephone directory that competes for "yellow page" advertising with Rural Telephone's local directories.

The Supreme Court ruling, in the case of Feist vs. Rural Telephone (No. 89-1909), only dealt with the white pages of Rural Telephone directories. There was no dispute that the company's yellow pages contained enough original material to be copyrightable.

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