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4 1. Federal Agencies and Copyright eral court.16 Under 17 U.S.C. 412, a registration made Federal agencies do not have copyright protection for within 3 months of first publication entitles the copy- any work created by the government; for example, the right holder to statutory damages for infringement dat- decennial census is not copyrightable.8 The government ing back to the work's creation. After a court has juris- may hold a copyright in a work transferred to the gov- diction of an action for copyright infringement, the ernment,9 but the government may not copyright a work court may grant injunctive relief to restrain infringe- 10 prepared by a federal employee. A work is copyright- ment of any copyright, whether registered or unregis- able when commissioned by the government but written tered.17 by an independent contractor.11 As will be discussed, the closest analogy in copyright law to real-time data is a database, which may have 18 2. State Agencies and Copyright some limited copyright protection as a compilation. Although the courts have construed the term "compila- As for state or local governmental agencies, the tion" broadly,19 pure data are not copyrightable. Only Copyright Act does not preclude a state employee's the selection and arrangement of a compilation are work from being copyrightable. Whether a state or local copyrightable.20 Thus, although data are not copyright- agency may copyright a work is a matter of state law. able, a compilation of data having some originality is Some state laws "explicitly recognize the authority of 21 subject to the copyright laws. public officials or agencies to copyright specific public Under Section 101 of the Copyright Act, although records that they have created."12 At least 28 states facts, ideas, and concepts are not copyrightable, "a claim the right to copyright, "and state copyright claims `compilation' is a work formed by the collection and as- are routinely made for some categories of state 13 sembling of preexisting materials or of data that are data...." As the Second Circuit has held, "states and selected, coordinated, or arranged in such a way that their subdivisions are not excluded from protection un- the resulting work as a whole constitutes an original der the [Copyright] Act."14 In sum, the majority rule 22 work of authorship." There are three requirements for appears to be that, unless prohibited by state law, state a compilation under the copyright laws: "(1) the collec- and local agencies may seek copyright protection for tion and assembly of preexisting data; (2) the selection, their works. coordination, or arrangement of that data; and (3) a resulting work that is original, by virtue of the selec- B. Whether Real-Time Data Are Copyrightable as tion, coordination, or arrangement of the data contained a Compilation or Database in the work."23 Under Section 102(a) of the Copyright Act, At the present time, based on decisions by the "[c]opyright protection subsists...in original works of United States Supreme Court and lower federal courts, authorship fixed in any tangible medium of expression, it does not appear that real-time data may be copy- now known or later developed, from which they can be righted. There is some copyright protection for a data- perceived, reproduced, or otherwise communicated, ei- ther directly or with the aid of a machine or device." 16 Murray Hill Publ'ns, Inc. v. ABC Communs., Inc., 264 Therefore, an original work is protected by copyright F.3d 622, 630 (6th Cir. 2001); see also N.Y. Mercantile Exch., law from the moment it is "first embodied in a tangible Inc. v. IntercontinentalExchange, Inc, 389 F. Supp. 2d 527, 539 medium" and even "subsists" prior to a copyright regis- n.9 (S.D.N.Y. 2005) (citing 17 U.S.C. 411(a)). 15 tration. An author has a copyright in his or her works 17 See, e.g., Olan Mills, Inc. v. Linn Photo Co., 23 F.3d 1345, regardless of whether the work has been registered 1349 (8th Cir. 1994); Pac. & S. Co., Inc. v. Duncan, 744 F.2d with the Copyright Office. The registration requirement 1490, 1499 n.17 (11th Cir. 1984). under 17 U.S.C. 411(b) is a jurisdictional prerequisite 18 "Databases, or `compilations,' have been protected by to copyright-holder's right to enforce a copyright in fed- copyright since 1790, when the first U.S. Copyright Act was enacted." Executive Summary (on legal protection for databases), Copyright Office, available at: http://www.copyright.gov/ 8 reports/execsum2.pdf. Robert Gellman, Twin Evils: Government Copyright and 19 MELVILLE B. NIMMER & DAVID NIMMER, 1 NIMMER ON Copyright-Like Controls over Government Information, 45 COPYRIGHT 1.08[B] at 1-107, Mathew Bender, Mar. 6, 1997. SYRACUSE L. REV. 999, 1003 (1995). 20 9 Id. 3.04[B][3][c] at 3-34.26. 17 U.S.C. 105 (2009). 21 10 Id. 3.02, at 3-5 (stating also that a compilation that "in- Id. 101, 105 (2009). 11 corporates pre-existing `materials' or `data' that may or may See ROBERT A. GORMAN, COPYRIGHT LAW 52 (2d ed. 2006), not be capable of being protected by copyright" may be pro- pdf version available at http://www.fjc.gov/public/ tected by copyright). pdf.nsf/lookup/copyright.pdf/$file/copyright.pdf. 22 12 17 U.S.C. 101; Lars S. Smith, RFID and Other Embed- County of Santa Clara, 170 Cal. App. 4th 1301, 1331, 89 ded Technologies: Who Owns the Data?, 22 SANTA CLARA Cal. Rptr. 3d 374, 397 (citation omitted). COMPUTER & HIGH TECH. L.J. 695, 707 (2006), hereinafter 13 Gellman, supra note 8, at 1027 (footnote omitted). cited as "Lars Smith" (citing 17 U.S.C. 101 (definition of com- 14 County of Suffolk, N.Y. v. First Am. Real Estate Solu- pilation)). tions, 261 F.3d 179, 187 (2d Cir. 2001) (citation omitted). 23 KEY PUBL'NS, INC. V. CHINATOWN TODAY PUB. ENTERS., 15 17 U.S.C. 102 (2009). INC., 945 F.2d 509, 512 (2d Cir. 1991) (citation omitted).

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5 base as a compilation if it satisfies the test of originality Guidance Number 1 within the meaning of the Copyright Act. As for how Pure data are not copyrightable. If there is some much originality is required, the U.S. Supreme Court originality, even though slight, in the selection and ar- addressed the issue in Feist Publications, Inc. v. Rural rangement of data, then a database may be an original Tel. Serv. Co.24 Although a telephone directory is a com- work that is copyrightable as a compilation. However, pilation, the Court held in Feist that a telephone direc- there is no copyright protection for the underlying data, tory is not protected by copyright law. The respondent which may be extracted freely and copied and distrib- Rural Telephone Service Co. had published a typical uted by anyone without infringing the copyright for the telephone directory of white and yellow pages distrib- compilation. uted free of charge to its subscribers. When Rural Tele- phone refused to license its listings to Feist Publica- Relevant to the issue of the copyrightability of a tions, Feist used Rural Telephone's listings anyway. In transit agency's real-time data is that data selection for holding that Rural Telephone's directory was not pro- a compilation must involve an exercise of judgment in tected by copyright as a compilation, the Supreme deciding what to include in the compilation.33 If a compi- Court reiterated a fundamental principle in copyright lation "uses a standard set of selection criteria, then the law: "facts are not copyrightable."25 34 compilation is not copyrightable." For example, an Some compilations are copyrightable but only if they article discussing the use by manufacturers of radio satisfy the test of originality within the meaning of the frequency identification (RFID) tags to track a manu- Copyright Act. In Feist, the Court held that although facturer's products after sale concludes that "if the tag "`no one may claim originality as to facts,'"26 a factual is tracking everywhere the item has been, ...then likely compilation could meet the originality test "if it features the compilation will not be held to be copyrightable."35 an original selection or arrangement."27 Nevertheless, More to the point is that in 2007 the Second Circuit the "copyright in a factual compilation is thin."28 The affirmed a district court's decision in New York holding Court rejected a test that had been used by lower courts that real-time data are not subject to the protection of that had held "that copyright was a reward for the hard the copyright laws. In N.Y. Mercantile Exch., Inc. v. work that went into compiling facts"--the "sweat of the IntercontinentalExchange, Inc.,36 the New York Mercan- brow" or "industrious collection" test.29 Because Rural tile Exchange (NYMEX) brought an action against In- Telephone's white pages did not meet the test of origi- tercontinentalExchange, Inc. (ICE) for copyright in- nality, Feist's use of Rural Telephone's information was fringement under the 1976 Copyright Act and for not copyright infringement. trademark infringement under the trademark laws of In Feist, the Court explained what is meant by the the United States, as well as for violations of New York term "originality" within the meaning of the copyright law.37 At issue was daily real-time data used in the pric- laws. ing of commodity futures contracts for natural gas and Original...means only that the work was independently light sweet crude oil.38 The changes in the value of con- created by the author (as opposed to copied from other tracts "are determined by reference to the end-of-day works), and that it possesses at least some minimal de- `settlement prices' for the futures contracts."39 As dis- gree of creativity....To be sure, the requisite level of crea- cussed in Section I.C.8, infra, the Copyright Office was tivity is extremely low; even a slight amount will suf- willing to register NYMEX's copyright in its database of fice....Originality does not signify novelty; a work may be daily settlement prices but refused to register the daily original even though it closely resembles other works so settlement prices themselves. long as the similarity is fortuitous, not the result of copy- 30 NYMEX and ICE disputed how the settlement prices ing. (emphasis added) were determined. According to NYMEX, it uses a Set- Although the Court stated that "even a slight tlement Price Committee (SPC) to assist in the deter- 31 amount [of originality] will suffice," the Court held mination of the prices "pursuant to NYMEX's rules, that the selection, coordination, and arrangement of Rural's white pages did not warrant copyright protec- 33 tion.32 Key Publ'ns, Inc., 945 F.2d at 513 (2d Cir. 1991) (citation omitted). 34 Smith, supra note 22, at 713 (2006); Financial Informa- tion, Inc. v. Moody's Investors Serv., Inc., 808 F.2d 204, 208 (2d Cir. 1986) (agreeing with the district court that there was "in- 24 sufficient proof of `independent creation' to render...Daily Bond 499 U.S. 340, 111 S. Ct. 1282, 113 L. Ed. 2d 358 (1991). 25 Cards copyrightable [when] [t]he researchers had five facts to Id. at 344. fill in on each card--nothing more and nothing less"). 26 Id. at 347 (citation omitted). 35 Id. at 713. 27 Id. at 348 (citation omitted). 36 389 F. Supp. 2d 527 (S.D.N.Y. 2005). 28 Id. at 349. 37 Id. Because the court had granted a summary judgment 29 Id. at 352. for ICE dismissing the federal claims, the court declined to 30 Id. at 345 (citations omitted). exercise jurisdiction of the claims asserted under state law. 31 38 Id. Id. at 530. 32 39 Id. at 362. Id. (citations omitted).