Exceptions to Copyright: Facts and Data
Copyright law provides protection for original creative expression that is recorded in a physical or digital form, things like literary works, music, art, and film. Copyright does not protect facts, data, or ideas though it does protect databases. This guide provides information about ways in which data is and is not protected, and gives advice for using data from other sources and for sharing or protecting your own.
Copyright and databases
Copyright law does not apply to facts, data, or ideas. According to the U.S. Constitution, the purpose of copyright law is “to promote the progress of science and useful arts.” If copyright could grant individuals or business exclusive control of facts and ideas, it would constrain all kinds of progress, or eliminate it altogether. That is why the second section of the US Copyright Act spells out what is not protected by copyright:
In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
However, copyright may protect a collection of data as contained in a database or compilation, but only if it meets certain requirements. Simply working really hard to gather the data – what the Supreme Court called the “sweat of the brow” doctrine – is not enough. It may take a lot of work to gather all the names and phone numbers of all the people and business in a town and arrange them in alphabetical order, but white pages phone books do not qualify for copyright protection.
In order for a database to qualify for copyright protection, the author has to make choices about the selection, coordination, or arrangement of the facts or data, and those choices must be at least a little bit creative. In an important decision on copyright for compilations, Feist Publications v. Rural Telephone, the Supreme Court put it this way:
Factual compilations… may possess the requisite originality. The compilation author typically chooses which facts to include, in what order to place them, and how to arrange the collected data so that they may be used effectively by readers. These choices as to selection and arrangement, so long as they are made independently by the compiler and entail a minimal degree of creativity, are sufficiently original that Congress may protect such compilations through the copyright laws.
It is important to remember that even if a database or compilation is arranged with sufficient originality to qualify for copyright protection, the facts and data within that database are still in the public domain. Anyone can take those facts and reuse or republish them, as long as that person arranges them in a new way. Unless they are accessible only under a contract that conditions access on limiting how the facts and data may or may not be used; any such contract would control.
Privacy and data
Privacy: Just because data is not protected by copyright, does not mean there are not other legal considerations that may come into play when you wish to use someone else’s dataset. The most common issue is privacy. Research in a wide range of fields as diverse as medicine, sociology, education, and public policy may include information about individuals that is protected either by federal privacy legislation or by commitments made by the researchers. Even attempts to anonymize data before sharing it do not ensure that individual research subjects will not be identifiable. As a result, it is best to follow the best practices set forth in your discipline. One organization that helps with Social Science or related disciplines data is ICPSR (http://www.icpsr.umich.edu) and is available for consultation at firstname.lastname@example.org .
Database legal protection (overview including discussion of UK law differences): http://www.bitlaw.com/copyright/database.html
Legal information about copyright protection of databases: http://www.unc.edu/courses/2006spring/law/357c/001/projects/dougf/node5.html