Australian Judge Rules Facts Cannot Be Copyrighted

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Australian Judge Rules Facts Cannot Be Copyrighted

Posted by timothy on Saturday February 13, 2010 @09:32PM from the same-time-same-channel dept.

nfarrell writes "Last week, an Australian Judge ruled that copyright laws do not apply to collections of facts, regardless of the amount of effort that was spent collecting them. In this case, the case surrounded the reproduction of entries from the White and Yellow Pages, but the ruling referred to a previous case involving IceTV, which republishes TV guides. Does this mean that other databases of facts, such as financial data, are also legally able to be copied and redistributed?" Here are analyses from a former legal adviser to the directory publisher which prevailed as the defendant in this case, and from Smart Company.

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Settled law in the United States by Kirijini · 2010-02-13 21:39 · Score: 5, Informative

This has been settled law in the United States since the Supreme Court ruling in Feist Publications, Inc., v. Rural Telephone Service Co. (1991). You can read the whole opinion on Google Scholar. I highly recommend reading it, it's a classic in American copyright law.
1. Re:Settled law in the United States by Anonymous Coward · 2010-02-13 21:46 · Score: 3, Insightful
  
  Interesting. So the publication of facts is uncopyrightable.
  If I really wanted to go to extremes, could I demand that documentaries, photographs, or other representations of "facts" as being uncopyrightable as well?
  I'm really just confused as to what extent we can classify things as facts or not facts.
2. Re:Settled law in the United States by Trepidity · 2010-02-13 21:56 · Score: 5, Informative
  
  Particular representations of facts, like documentaries or photographs, can be copyrighted. It's the underlying facts that can't be, so you can't stop someone else from publishing the same facts in a way that doesn't use any of your creative presentation of them. In Feist, the court held that there wasn't any creative presentation at all, because listing all people in an area code in alphabetical order was just the bare facts, with no presentation that rose to the level of something copyrightable. If they had done something creative, they could copyright that part, but anyone could still extract and republish the names and phone numbers, because that bare list isn't copyrightable.
  
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3. Re:Settled law in the United States by Trepidity · 2010-02-13 22:00 · Score: 4, Insightful
  
  To give a not-yet-litigated example of what I think would be the 3d analogy: A 3d model exactly capturing the surface of the Washington Monument is not copyrightable, because it's mere facts. However, particular photographs or films of the Washington Monument are copyrightable, as they have creative presentation. However (again), someone who collected a bunch of photographs or films of it and extracted a 3d model of the Washington Monument from them, would not be violating the copyright on the photographs or films, because they were merely copying the facts (the 3d spatial position of the stones).
  
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4. Re:Settled law in the United States by smallfries · 2010-02-13 22:15 · Score: 2, Insightful
  
  It's a nice try, but you are trying to define a fact based on some copyrighted work. While meta-logic tricks might seem like a nice way around for a geek, for a lawyer they are simply a violation of copyright.
  
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5. Re:Settled law in the United States by mwvdlee · 2010-02-13 22:25 · Score: 2
  
  How about a rendering of the 3D model?
  
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6. Re:Settled law in the United States by JorDan+Clock · 2010-02-13 22:31 · Score: 2, Informative
  
  That's a fact based on a creative work. Not a creative work based on a fact.
7. Re:Settled law in the United States by Tim+C · 2010-02-13 22:47 · Score: 2, Insightful
  
  On a related note, courts tend to take a rather dim view of people trying to take the piss and exploit clever word play to try to get around a law like that. It also takes you well out of "I'm sorry, I didn't realise it was wrong..." and squarely into culpable intent territory, which is likely to up the consequences to the higher end of the scale.
  (Note: of course, IANAL)
  
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8. Re:Settled law in the United States by tepples · 2010-02-13 23:28 · Score: 2, Informative
  
  My understanding is that an original rendering with an original arrangement of lights on the (uncopyrightable) 3D model would be copyrightable, at least in the United States.
9. Re:Settled law in the United States by jklovanc · 2010-02-13 23:33 · Score: 3, Interesting
  
  I disagree. The fact that the Washington monument 555 feet and 5 1/8 inches tall is not copyrightable but a 3-D model may be. The model must have some form of coordinate system. It must have some sort or relationship between the coordinates. It must have some indication of what is solid and what is not. This is much more than simple facts.
  If it was not copyrightable then there would be no way to recoup the cost of creating 3-D models of buildings. Think of how much it would cost to 3D model New York City.
10. Re:Settled law in the United States by Trepidity · 2010-02-13 23:45 · Score: 2, Informative
  
  In philosophy and logic, question-begging is basically a fancy term for circular argument: using the thing you want to prove, or something equivalent to it, as part of your argument for that same thing.
  Oddly that "correct" usage is itself actually somewhat of a corruption. Aristotle considered circular argument different from question-beginning, and defined question-begging as asking your opponent in a debate to conceded a point that was equivalent to the point being debate. They're somewhat related concepts, though.
  
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11. Re:Settled law in the United States by Trepidity · 2010-02-13 23:49 · Score: 3, Insightful
  
  If it was not copyrightable then there would be no way to recoup the cost of creating 3-D models of buildings. Think of how much it would cost to 3D model New York City.
  Isn't that essentially the "sweat of the brow" argument U.S. copyright law explicitly rejected? The mere fact that it takes a lot of effort to compile some facts doesn't make them copyrightable.
  (And in any case, it actually isn't very expensive to crowdsource a 3d model of a whole city.)
  
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12. Re:Settled law in the United States by jklovanc · 2010-02-14 00:18 · Score: 2, Informative
  
  You missed a key point of the the rejection;
  "The arrangement and presentation of a collection may be original, but not if it is "simple and obvious" such as a list in alphabetical or chronological order."
  The arrangement of 3D data is neither "simple" nor "obvious" for the reasons I already stated. If you disagree ask an average adult to create a 3D model of a building.
13. Re:Settled law in the United States by Jah-Wren+Ryel · 2010-02-14 00:23 · Score: 2, Insightful
  
  The arrangement of 3D data is neither "simple" nor "obvious" for the reasons I already stated. If you disagree ask an average adult to create a 3D model of a building.
  An exact model would contain no creative component. Especially considering that said arrangement of 3D data is going to be in some standardized format which is the 3D equivalent of alphabetizing a list of names.
  
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  When information is power, privacy is freedom.
14. Re:Settled law in the United States by erroneus · 2010-02-14 00:58 · Score: 2
  
  I think one part of the test should include the probability that two independent parties doing the same work ending up with the exact same result should determine whether or not something should be a creative work.
  Would two parties doing the exact same work come up with two [substantially] different models of the Washington monument? I doubt it.
  If this test were applied, I think it becomes increasingly more obvious as to what is a creative work and what is not.
15. Re:Settled law in the United States by mpeskett · 2010-02-14 01:56 · Score: 2, Insightful
  
  If I understand correctly, you could claim copyright on the creative part, but not the factual part - so your subset of the phone book ... well there's still not a lot there but facts, but if you took a subset of the phone book and presented it in some creative way, then that particular creative presentation could be copyrighted, but not the numbers themselves.
16. Re:Settled law in the United States by mpeskett · 2010-02-14 02:03 · Score: 2, Informative
  
  So circular argument would be "X therefore X" whereas begging the question would be "Do we all agree that X? Well then Y" where X = Y, but phrased differently. Either way you're taking the conclusion of your argument as a premise; the difference is in whether you're stating it as your premise or asking an opponent to agree with it as a premise.
  If your goal is just to show that your opponent agrees with you, begging the question could be a valid argument - if the question you've 'begged' and the conclusion reached really are logically equivalent, but your opponent professes to agree with one and disagree with the other, then you've effectively shown their position to be self-contradictory. Says nothing about the actual truth of X (and it's easily abused by people claiming two things to be logically equivalent that aren't) but as a method of argument it could work.
17. Re:Settled law in the United States by naam00 · 2010-02-14 02:18 · Score: 2, Interesting
  
  There is no standardized format for 3D models. Sure there are some oft-used formats for transport between different applications, but in those, even the fact that the model is built up out of verteces and triangles is somewhat of an artistic choice -- the modeller could have chosen NURBs. And even after that choice, the way in which he decides to distribute the polygons or NURBs can be wholly different from another modeller. As such there doesn't exist any way to build an exact 3D model of anything.
  
  Any model built after an existing landmark will be some kind of rendition of that landmark. I think the rendition is the bit that would be copyrightable -- it's just as much not a pure representation of bare facts as a photograph would be. I'd say even if you make a laserscan of the object, this still somehow applies.
18. Re:Settled law in the United States by nine-times · 2010-02-14 03:32 · Score: 4, Funny
  
  If it was not copyrightable then there would be no way to recoup the cost of creating 3-D models of buildings.
  Right, I think people are forgetting about the part in the Constitution where it says, "The Congress shall make laws ensuring that all business expenses are recoupable in full." IIRC it comes right before, "The Congress shall construct laws to ensure that current business models remain protected from innovation," and "The Congress shall bail out any large companies which are failing."
  I mean, we can't let any big businesses fail to be profitable, right? That'd be bad for the economy.
19. Re:Settled law in the United States by Nadsat · 2010-02-14 06:51 · Score: 2
  
  Hypothetically... under this law... could I do publish a copyrighted book, verbatim, by encapsulating it in a "fact statement". My book would begin like this: It is a fact that J.K. Rowling wrote the following words "[insert entire Harry Potter novel here"] Is this not publishing a fact, which is un-copyrightable? Why would this not stand up in court?
  
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20. Re:Settled law in the United States by Khyber · 2010-02-14 07:41 · Score: 2, Interesting
  
  "There is no standardized format for 3D models."
  Yes there is - it's called 'drafting.' Maybe there is no standardized format for computer representations, but EVERY SINGLE PROGRAM relies upon the same basic principles that originated from paper and pencil drafting/architectural design.
  
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  Still waiting on Serviscope_minor to wake up to fucking reality and realize that Jessica Price isn't going to fuck him.
21. Re:Settled law in the United States by russotto · 2010-02-14 08:03 · Score: 4, Interesting
  
  Hypothetically... under this law... could I do publish a copyrighted book, verbatim, by encapsulating it in a "fact statement". My book would begin like this: It is a fact that J.K. Rowling wrote the following words "[insert entire Harry Potter novel here"] Is this not publishing a fact, which is un-copyrightable? Why would this not stand up in court?
  Because judges have been dealing with that kind of sophistry since at least the time of the Sophists, and they're not going to buy it.
22. Re:Settled law in the United States by Philip_the_physicist · 2010-02-14 11:45 · Score: 2
  
  If there was an element of creativity in the creation of the model, there would be copyright on the creativity. If the deviation from the original was simply a question of the precision to which the measurements were made, then there would be little to no creativity.
  Photographs/prints of paintings which are themselves out of copyright would provide plenty of lawyer-fodder in this regard.
23. Re:Settled law in the United States by Trepidity · 2010-02-14 11:56 · Score: 2, Interesting
  
  A score of a public-domain piece of music indeed isn't independently copyrightable unless it were scored in some creative fashion.
  (I'm talking here about 3d models of things that are themselves in the public domain; a 3d model of a sculpture where the sculpture itself is still under copyright would not be public domain.)
  
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24. Re:Settled law in the United States by Jah-Wren+Ryel · 2010-02-14 13:09 · Score: 2, Interesting
  
  So he's right - there are several standards.
  No, he did not say there is "no single standardized format" he said there is "no standardized format."
  There is nothing about standardization the requires there be only a single standard. An example of multiple standards is screw-heads where there are at least all of these different standards: phillips, slotted, pozidriv, square, robertson-square, hex, torx, tri-wing, torq-set, spanner-head, triple-square, polydrive, one-way, spline-drive, double-hex and bristol.
  
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  When information is power, privacy is freedom.
25. Re:Settled law in the United States by digitalunity · 2010-02-14 14:51 · Score: 2, Insightful
  
  If such a test were implemented for software patents I would be a happy camper. There are so many software patents that are merely digital adaptations of things invented long ago, or mere incremental progression from existing software that I just don't think they should be patentable.
  Only true innovation should be patentable, software or otherwise.
  
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  You can't legislate goodness. Let each to his own destiny, by will of his freely made choices.
What about... by concernedadmin · 2010-02-13 21:40 · Score: 2, Interesting

... facts interspersed with opinions? Is there partial copyright in effect with only the opinion parts falling under copyright law?
1. Re:What about... by JorDan+Clock · 2010-02-13 22:34 · Score: 2, Informative
  
  That's a collection of facts based on a creative work. This kind of ruling doesn't apply to that. The creative work is already copyrighted and thus protected from such reproductions.
US Law by Toonol · 2010-02-13 21:40 · Score: 2, Informative

May be worth noting that "collections of fact" have long been recognized as uncopyrightable in the US. However, if significant creative work went into filtering the facts in a certain way.. like I picked out all the funny-sounding names from the phone book... the resulting list may be copyrighted.
1. Re:US Law by MrNaz · 2010-02-13 22:31 · Score: 3, Insightful
  
  You're playing fast and loose with the definition of a fact. If you take your attempt here, then nothing is copyrightable, because it is a "fact" that the writing on the pages of this particular book are what they are, therefor nothing is copyrightable.
  You can't just meta factualise the entire universe and render copyright law null.
  
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2. Re:US Law by maxwell+demon · 2010-02-13 22:58 · Score: 2, Insightful
  
  You're playing fast and loose with the definition of a fact.
  I'm using the normal, everyday definition of a fact. If the legal definition of a fact is different, that definition should be stated somewhere.
  For example, say I'm creative when naming my child, can I then sue the phone book company for copyright infringement when it lists the name?
  
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  The Tao of math: The numbers you can count are not the real numbers.
Re:I know I'll get modded down for this, but by darinfp · 2010-02-13 22:34 · Score: 2

Why you bothered replying is beyond me...
Re:Trivial Pursuit by Kalriath · 2010-02-13 22:45 · Score: 2, Insightful

Sure, as long as you don't mention the trademarked term "Trivial Pursuit" anywhere.

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How about databases? by golodh · 2010-02-13 22:48 · Score: 2, Interesting

As the parent poster notes, this ruling from down-under agrees with US legal theory on this issue. But what about databases?
For example ... Lexis-Nexus? And big chemical databases (see http://en.wikipedia.org/wiki/Chemical_database) like the Beilstein database (see http://en.wikipedia.org/wiki/Beilstein_database)?
On the one hand I'm very glad that mere facts aren't patentable, but on the other hand if this means that anyone can slurp down your entire database and then resell it or even export it then it's less of a boon. This is why e.g. the EU came up with their "database directive" which expressly provides databases with copyright protection if they are "collections of facts that took significant effort to compile".
Not that that's ideal, because it e.g. lets public transport providers claim copyright on timetables (which they promptly abused in the EU until court-cases established that public transport providers had to draw uptime-tables anyway in order to make their networks run, and that it required negligible effort to put that stuff into a database afterwards). Likewise with ZIP codes in the EU: it may seem ridiculous but ZIP code databases are copyrighted there.
So what is the legal status of databases here? Does anyone know?
1. Re:How about databases? by Anne+Thwacks · 2010-02-14 01:45 · Score: 2, Insightful
  
  I don't know about the US but in Germany and I think the rest of the EU, the "sweat of the brow" rule applies to databases.
  As an SQL programmer, I can vouch for "sweat of the brow" personally. Is there a ruling that DB4 code is worth more than SQL because of the extra amount of grief that went into debugging it?
  
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2. Re:How about databases? by mspohr · 2010-02-14 02:11 · Score: 2, Funny
  
  Study the language dood.
  What is this "language dood" that I should study? Google just says "Did you mean "Language Door"?
  
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3. Re:How about databases? by pdabbadabba · 2010-02-14 04:18 · Score: 3, Insightful
  
  Bear in mind that even if copyright law provides no protection to databases, a database owner can still choose to only allow you access to their database under a license that prohibits you from reselling the information (and I believe many large database owners do just this). So, what you can't enforce through copyright law you probably could enforce through contract law.
  (I am a law student, not a lawyer)
  
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  caritj.org
This is nice for Australia by Sique · 2010-02-13 23:19 · Score: 2, Interesting

In Germany and other EU countries there is special wording in the Author's Right (Urheberrecht) to protect databases even if the single entry in the database is not protected. So while in Germany facts are not protected by the Author's Right, databases of facts are.
Interestingly though since the addition of databases to the Author's Right in the 90ies the market share of EU based companies for databases has dwindled. This is probably pure coincidence.

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The movie 2012 by Sneeze1066 · 2010-02-13 23:46 · Score: 4, Funny

...was that fact? Just want to clarify before I download it.
Re:Of course Financial Data cannot be published by Xugumad · 2010-02-14 00:04 · Score: 2, Informative

I believe the submitter was talking about stock market prices. While end of day prices are readily available, high precision data (the sort of stuff you'd need if you're backtesting automated traders, for example) is fairly pricey. For example, CBOE back data:
http://www.marketdataexpress.com/servicePriceList.aspx
runs to about $200/month per symbol, or $1,250/month for all available options, for per-tick quotes. Of course, a lot of what you're paying for is the knowledge that the information is correct, and there are cheaper options (for example many real time data feeds come with some amount of historical data, and you can always collect information over time) if you're happy dealing with the data integrity issues yourself.
One-Fifth of Human Genes Have Been Patented by BugHappy · 2010-02-14 18:55 · Score: 2, Interesting

Human DNA has been patented: http://news.nationalgeographic.com/news/pf/22064243.html But DNA is hardly anything else as just a "collection of facts". Do you mean that these patents were illicit?