Creation and Commercial Value: Copyright Protection of Works of Information

Abstract

In 1899, Augustine Birrell, a Victorian barrister, lamented: "The question of copyright has, in these latter days, with so many other things, descended into the market-place, and joined the wrangle of contending interests and rival greedinesses." Birrell's remark conveys distaste for those authors who would "realise the commercial value of their wares." But the question of copyright has always been joined with that of commercial value. Indeed, by affording authors limited monopoly protection for their writings, our Constitution relies on wrangling greed to promote the advancement of both creativity and profit. Nonetheless, the distinction Birrell implies between copyrightworthy works of authorship and mere commercial "wares" pervades much modem copyright law. Modem copyright comfortably embraces works manifesting a personal authorial presence. Protection depends on whether the work manifests authorial personality, not whether that personality demonstrates either taste or talent. On the other hand, modem copyright encounters far more difficulty accommodating works at once high in commercial value but low in personal authorship. The paradigm for this kind of work and its attendant problems is a compilation of factual information. This Article examines the application of copyright law to personality-deprived information compilations such as directories, indexes, and data bases – endeavors I shall collectively dub works of "low authorship." I argue that the problems surrounding the inclusion of these works within the subject matter of copyright and the delineation of their appropriate scope of protection reflect a misguided – and increasingly untenable – attempt in United States copyright law to impose a unitary, personality-based concept of copyright. Itself a product of the late nineteenth century, the personality concept of copyright continues – often subconsciously, but certainly pervasively – to inform our ideas about copyright today, too often to the exclusion of competing models of copyright. But a unitary concept of copyright is neither faithful to earlier copyright history, nor well adapted to contemporary technologies of creation and copying of informational works.

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