RE: OCLC's New License for Bibliographic Records

[richards1000@comcast.net]

Rebecca:

Thanks for raising a very important issue respecting 
copyrightability of individual bibliographic records. Some of us 
are urging OCLC to state expressly whether they are asserting a 
compilation copyright only, or also a copyright in each 
individual WorldCat bib record, as such a statement is necessary 
for OCLC members to understand their rights under the proposed 
license.

To begin, it might be helpful to observe that OCLC's strongest 
argument in favor of copyright is probably for a compilation 
copyright in the WorldCat database as a whole, on the ground that 
OCLC's provision of multiple indexes for the database renders 
distinguishable the Feist case (499 U.S. 340 (1991), 
http://www.law.cornell.edu/copyright/cases/499_US_340.htm ).

There is strong authority for this position:

See Assessment Techs. of WI, LLC v. WIREdata, Inc., 350 F.3d 640, 
643 (7th Cir. 2003) (Posner, Cir. J.), 
http://www.projectposner.org/case/2003/350F3d640

CCC Info. Servs. v. Maclean Hunter Market Reps., Inc., 44 F.3d 61 
(2d Cir. 1994) (Leval, Cir. J.), 
http://bulk.resource.org/courts.gov/c/F3/44/44.F3d.61.93-7687.1312.html

Lipton v. Nature Co., 71 F.3d 464 (2d Cir. 1995), 
http://bulk.resource.org/courts.gov/c/F3/71/71.F3d.464.94-9123.1858.html

Key Publications. Inc. v. Chinatown Today Pubns. Enters., Inc., 
945 F.3d 509, 512-13 (2d Cir. 1991), 
http://bulk.resource.org/courts.gov/c/F2/945/945.F2d.509.91-7235.1681.html

I think an argument in favor of copyright in individual bib 
records is weaker, but one may be able to make it. (One might ask 
one's university counsel to address this question as they review 
the proposed OCLC license.)

To my knowledge, whether the making of an individual 
bibliographic record involves sufficient originality for 
copyright to attach has not been decided by the courts. 
(Listmembers, please correct me if that's wrong.)

Full MARC21 bib records contain basically two types of data: 
purely descriptive data (such as title and statement of 
responsibility) that are probably not copyrightable (since they 
would be considered facts under copyright law, see Harper & Row 
Publishers, Inc. v. Nation Enters., 471 U.S. 539, 556 (1985), 
http://www.law.cornell.edu/copyright/cases/471_US_539.htm), and 
access points (such as subject headings and classification 
numbers) the application of which may involve sufficient exercise 
of judgment to satisfy the "originality" requirement for 
copyright.

There is post-Feist caselaw holding certain classification 
systems copyrightable; see Am. Dental Association v. Delta Dental 
Plans Assn, 126 F.3d 977 (7th Cir. 1997) (Easterbrook, Cir. J.), 
http://www.law.cornell.edu/copyright/cases/126_F3d_977.htm , but 
the issue here is the exercise of judgment involved in applying 
elements of those systems to individual records.

There appears to be case law potentially helpful to both sides. 
The cases (such as Assessment Technologies and Key Publications) 
holding that databases are copyrightable on the ground that 
subject indexing involves sufficient exercise of judgment to 
satisfy the originality requirement for compilation copyright, 
might be cited to support an assertion of copyright in individual 
records. The reasoning would be that application of subject 
headings and classification numbers to individual records 
involves as great or greater exercise of judgment (and thus 
"originality") as the creation of indexes using those headings 
and numbers. I think Circuit Judge Roth'ss dissent in Southco 
contains valuable material in support of this position. See 
Southco, Inc. v. Kanebridge Corp., 390 F.3d 276, slip op. at 
24-40 (3d Cir. 2004) (en banc), 
http://www.ca3.uscourts.gov/opinarch/021243pe.pdf .

The research literature on the knowledge, skills, and costs 
involved in subject analysis and proper application of LC 
Classification and LC Subject Headings might also be persuasive 
on this point.

On the other hand, the product catalog cases seem to run against 
a holding of copyrightability in individual records. See:

Southco; ATC Distrib. Group, Inc. v. Whatever It Takes 
Transmissions & Parts, Inc., 402 F.3d 700 (6th Cir. 2005), 
http://www.ca6.uscourts.gov/opinions.pdf/05a0149p-06.pdf ;

Toro Co. v. R & R Prods. Co. , 787 F.2d 1208 (8 th Cir. 1986) 
(pre-Feist), 
http://bulk.resource.org/courts.gov/c/F2/787/787.F2d.1208.85-5240.html.

Note in particular Circuit Judge Becker's concurring opinion in 
Southco discussing the scenes a faire doctrine, slip op. at 
19-24.

**The communication above is not offered as legal advice, and 
does not in fact constitute legal advice.**

Robert C. Richards, Jr., J.D.*, M.S.L.I.S., M.A.
Philadelphia, PA
richards1000@comcast.net
* Member New York bar, retired status.