Policy Statement About Compilations

I haven't posted about copyright in a while, and opportunity knocked via this morning's email newsletter from the Copyright Office. The office issued a policy statement about its examination of compilations, particularly claims of authorship in selection and arrangement of uncopyrightable material. I found it interesting for a number of reasons, primarily because of its potential deterrent effect on spurious copyright registrations in compilations of non-copyrightable facts or ideas. Below is mostly a summary with a few comments tossed in. The statement begins with a textual analysis of the Copyright Act, beginning with the definition of "compilation" found in §101:
A ‘‘compilation’’ is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.
After a brief look at Feist, they cut right to the chase:
However, a question that was not present in the facts of Feist and therefore not considered by the Court, is whether the selection, coordination, or arrangement of preexisting materials must relate to the section 102 categories of copyrightable subject matter.
I'll ruin the surprise and tell you now that the Office answered in the affirmative: the compilation must result in a §102(a) category of authorship. The textual analysis continues with a look at §103:
The subject matter of copyright as specified by section 102 includes compilations and derivative works...
Thus, "Section 103 makes it clear that compilation authorship is a subset of the section 102(a) categories, not a separate and distinct category." Section 102(a) lists eight categories of protectable works, such as literary works, musical works and audiovisual works. For example, the Feist phonebook would have been protectable as a literary work had it been original. The list of eight is meant to be illustrative though, as confirmed by explicit legislative history and textual use of "includes" rather than something like "is limited to."

After marching through some of the history of the Act, its gradual expansion of protectable works over time, and the legislative history of the current Act, the office concludes that Congress intended the categories to be flexible (e.g. software is considered a literary work) to account for changes in creative expression yet wanted to retain control to designate entirely new categories. This leads to the next section, where the Office discusses the hypothetical registration of a compilation of yoga poses and the unreported decision Open Source Yoga Unity v. Choudhury, which found the copyrightability of the selection and arrangement of a series of poses to be a triable question.

Since a yoga pose is not included in the §102(a) categories, the copyright office would refuse to register a compilation of yoga poses. It might, however, register a compilation of photographs or drawings (of the poses). The Office also concludes that "section 102(b) precludes certain compilations that amount to an 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." For example, a set of exercises meant to be done in order probably wouldn't be protected because it is functional, not purely expressive, although a film or compilation of photographs of the exercises might be.

The Office regrets issuing past registration statements for "compilations of exercises’’ or ‘‘selection and arrangement of exercises.’’ Although this will typically just be a matter of rephrasing claims (e.g. registering a "compilation of photographs" or "compilation of literary works"), it's great to see the Office offering clear guidance on the subject matter of copyright to keep the courts from having to sort it out.

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