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Brauneis, Robert F. --- "The Debate Over Copyright in News and its Effect on Originality Doctrine" [2009] ELECD 512; in Brauneis, F. Robert (ed), "Intellectual Property Protection of Fact-based Works" (Edward Elgar Publishing, 2009)

Book Title: Intellectual Property Protection of Fact-based Works

Editor(s): Brauneis, F. Robert

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848441835

Section: Chapter 2

Section Title: The Debate Over Copyright in News and its Effect on Originality Doctrine

Author(s): Brauneis, Robert F.

Number of pages: 35

Extract:

2. The debate over copyright in news and
its effect on originality doctrine
Robert F. Brauneis*
For the first three-quarters of the nineteenth century, the notion that copyright
incorporated an originality requirement which excluded factual matter from
protection was unknown to Anglo-American law. Courts routinely found
infringement of fact-based works, such as maps, charts, road-books, directo-
ries, and calendars, on the basis of the copying of their factual content, and
concluded that the industry of plaintiffs in gathering and presenting facts
should be protected under copyright law. By the first decade of the twentieth
century, however, the creativity-based view of originality, which denies
protection to factual matter on the ground that it is not the subjective creation
of an author, had found prominent expression in judicial opinions and trea-
tises. Although a number of commentators have noted the relationship
between the creativity-based view of originality and the ideology of the
`romantic author',1 this relationship does not explain the late nineteenth-century


* Associate Professor of Law and Co-Director of the Intellectual Property Law
Program, The George Washington University Law School; Member, Managing Board,
Munich Intellectual Property Law Center. I would like to thank the participants in the 28
September 2007 Symposium on `Feist, Facts, and Functions: IP Protection for Works
Beyond Entertainment,' co-sponsored by the Intellectual Property Law Program of The
George Washington University Law School and the Software and Information Industry
Association. For assistance in retrieving petitions and other original documents ...