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Durham, Alan L. --- "Speaking of the World: Fact, Opinion and the Originality Standard of Copyright" [2009] ELECD 515; 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 5

Section Title: Speaking of the World: Fact, Opinion and the Originality Standard of Copyright

Author(s): Durham, Alan L.

Number of pages: 53

Extract:

5. Speaking of the world: fact, opinion
and the originality standard of
copyright
Alan L. Durham*
`The world does not speak. Only we do.' So said post-modernist philosopher
Richard Rorty.1 Rorty's epigram occurs in a discussion of truth, mind and
language, yet it recalls a persistent problem in copyright law. The world does
not speak, but authors speak of the world. When they speak of the world, what
do they own by copyright? The question is most difficult in the case of factual
works. Whether they are histories, scientific treatises, travel guides or tele-
phone books, such works, in a manner of speaking, hold up a mirror to the
world. What is captured in the reflection is attributable, in part, to the author's
labor and genius; the world does not, after all, speak for itself. Yet, if the
mirror is an accurate one, the truths revealed are properties of the world. The
author did not create those truths, and in that sense is not the `author' of those
truths. Hence, if the author's work is copyrighted, to what extent can the
author claim those truths as his own, and prevent others, for the duration of the
copyright, from reproducing them?
Philosophers might find the mirror analogy naïve, yet it gives us a place to
start. Copyright extends to `original works of authorship fixed in any tangible
medium of expression'.2 Works of authorship may communicate facts, but
facts themselves are not copyrightable.3 If ...