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10 that were factual statements of daily market value, in a regulation allowing group registration for both pub- CCC Information Services the editors "created" the used lished and unpublished automated databases. The regu- car prices based on the editors' assumptions about the lation allows 3 months' worth of updates to be regis- prices for "average cars" for which there was "no actual tered at one time, with a deposit consisting of market to discover."99 identifying material from one representative day.106 An Possibly there is an argument that real-time data "`automated database' [is] a body of facts, data, or other used to predict future events are not discoveries of ex- information assembled into an organized format, suit- isting facts as were NYMEX's settlement prices and able for use in a computer and comprising one or more thus are subject to copyright protection. Nevertheless, files."107 The report explains that "[o]ne of the major is- even if a transit agency could register and update real- sues posed by automated databases is the status of on- 108 time data as an automatic database, discussed below, it going updates or other changes." However, "[t]o the is not clear that it would be practical or beneficial to do extent that each update of a database contains copy- so. As one transit agency stated when responding to the rightable subject matter, it may be registered. Each survey, a transit agency's real-time data are "ephem- registration for a published, updated database covers eral." only the additions that were published on the date specified in the application as the date of publication D. Registration of Automatic Databases with (emphasis supplied)."109 Real-Time Data Accordingly, the Copyright Office's regulations pro- NYMEX was unable to register a copyright in its vide 100 real-time data, its settlement prices. What NYMEX that, on the basis of a single application, deposit, and fil- obtained was a copyright solely in its database. If a da- ing fee, a single registration may be made for automated tabase is registered with the Copyright Office, it is pos- databases and their updates or other derivative versions sible to register updates to the database. Electronic that are original works of authorship, if, where a data- base (or updates or other revisions thereof), if unpub- databases come within the category of literary works, lished, is (or are) fixed, or if published is (or are) pub- but they are copyrightable, if at all, only as compila- lished only in the form of machine-readable copies.... 110 tions;101 for example, a database that is arranged merely alphabetically or chronologically will not be sufficiently One of the seven conditions that must be met is that original.102 As Patry on Copyright states, registering a each update must be made within 3 months of the filing copyright in a database is "very problematical."103 For 106 example, it may be impossible to separate the idea of U.S. COPYRIGHT OFFICE, REPORT ON LEGAL PROTECTION the database from its expression.104 Moreover, a data- FOR DATABASES (1997) (available at base may lack any selection or arrangement needed to reports/dbase.html), last accessed on Dec. 23, 2009. The Copy- right Office's Circular 65, Copyright Registration for Auto- meet the originality test, with the data being searchable mated Databases, explains the process and requirements for and retrievable by an off-the-shelf computer program.105 database registration. Section 408 of the Copyright Act requires copyright 107 Id. holders to deposit material in connection with their 108 Id. applications for copyright registration. Subsection 408 109 (c)(1) permits registration of classes of work, one of Id. The report explains that "Automated databases may be updated frequently; it is not unusual for a database to be which may be for "a single registration for a group of updated several times a day. Database producers on many related works." According to its Report on Legal Protec- occasions informed the Office that it was impossible as a prac- tion for Databases, in 1989 the Copyright Office adopted tical matter to register and deposit the "new" work each time revisions were made available to the public." Id. 110 99 Id. 37 C.F.R. 202.3 (2009). The requirements are: 100 In the NYMEX case, NYMEX first "sought a copyright for (A) All of the updates or other revisions are owned by the same copyright claimant; its database including the settlement prices. After the Copy- (B) All of the updates or other revisions have the same gen- right Office informed NYMEX that it was unwilling to provide eral title; a copyright in its settlement prices, NYMEX filed a replace- (C) All of the updates or other revisions are similar in their ment application and obtained a copyright for its database general content, including their subject; only." Id. at 112. The United States filed an amicus brief in (D) All of the updates or other revisions are similar in their NYMEX in which the government argued that "the settlement organization; prices are facts," and "even if they are not facts the idea of the (E) Each of the updates or other revisions as a whole, if pub- prices [has] merged with the expression" such that the prices lished before March 1, 1989, bears a statutory copyright notice are not copyrightable. The government also contended that as first published and the name of the owner of copyright in settlement "prices are not copyrightable because they are short each work (or an abbreviation by which the name can be recog- phrases." Id. at 113. nized, or a generally known alternative designation of the 101 PATRY, supra note 72, 3:69, at 3-220. owner) was the same in each notice; 102 Id. 3:67, at 3-216. (F) Each of the updates or other revisions if published was 103 first published, or if unpublished was first created, within a Id. 3:69, at 3-224. three-month period in a single calendar year; and 104 Id. (G) The deposit accompanying the application complies with 105 Id. 202.20(c)(2)(vii)(D).