Factual compilation qualifies for “thin” copyright

March 01, 2019
Patterson Thuente IP

More and more of our personal information is collected every day, but some of the most valuable consumer data continues to be pairings of names and addresses. Companies build massive databases that compile this information — but are these compilations protected by copyright? It depends.

Compiling data

Experian Information Solutions, Inc., has compiled its ConsumerView℠ database (CVD) since 1998. It encompasses more than 250 million records, each associated with an individual consumer. The database includes pairings of names and addresses. These pairings are among the CVD’s most lucrative components because mail marketers pay substantial amounts for licenses to use them.

In 2012, Experian’s smaller competitor Nationwide Marketing Services, Inc., tried to sell Experian a data compilation that included name and address pairings. Experian tested the pairings provided in a sample to compare them with its CVD pairings. After finding a match rate of more than 97%, it sued Nationwide for copyright infringement.

The trial court dismissed the case before trial, finding Experian didn’t have a valid copyright in the name and address pairing compilation. It held that the compilation lacked sufficient creativity or originality to merit copyright protection. Experian appealed.

Copyrighting compilations

As the U.S. Court of Appeals for the Ninth Circuit noted, the Copyright Act requires only minimal creativity to render a work original and worthy of protection. Thus, while facts aren’t copyrightable, collections or compilations of facts can possess the requisite originality for copyright protection.

The appellate court reviewed several earlier federal appellate decisions considering whether compilations of facts were copyrightable. It arrived at three general principles:

  1. Although facts aren’t entitled to protection, factual compilations are entitled to some if there’s creativity in the selection, arrangement or coordination of the facts.
  2. The requisite creativity to establish copyright protection in factual compilations is minimal.
  3. Such compilations of factual information receive only limited — “thin” — protection.

Thus, a compiler may freely copy the facts contained in a compilation to prepare a competing work as long as the work doesn’t use the same selection or arrangement.

Applying these general principles, the appellate court determined that Experian’s lists were entitled to limited protection. The company’s methods go beyond simple replication of data it receives; they produce different, allegedly more reliable data than the other four largest U.S. database compilers do.

Experian’s employees choose from multiple and sometimes conflicting sources and apply judgment in selecting the names and addresses to include. They also exclude information they view as irrelevant to Experian’s clients’ interests. The court found this selection process involves at least minimal creativity.

Finding thin protection

Nonetheless, Experian lost the case. Although the CVD was copyrightable, the protection was severely limited. The protection is so “thin,” the court observed, that “a competitor’s taking the bulk of the factual material from a preexisting compilation without infringement of the author’s copyright is not surprising.”

For that reason, the Ninth Circuit had previously held that infringement of factual compilations requires a “bodily appropriation,” meaning the works must be virtually identical. Because Nationwide’s database contained only 200 million pairings, the match rate between the two compilations could at most come out to 80% — insufficient to establish a bodily appropriation of the CVD.

Effort doesn’t count

Notably, the appellate court also rejected the “sweat of the brow” doctrine. It found that the investment of time and effort in a work doesn’t necessarily make it copyrightable. Rather, it comes down to originality. 

Experian Information Solutions, Inc. v. Nationwide Marketing Services, Inc., No. 16-16987, June 27, 2018, 9th Cir.

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