RE: OCLC's New License for Bibliographic Records

[richards1000@comcast.net]

Thanks to everyone for their comments.  Here are responses to two 
comments and an additional comment of my own.

Respecting Chuck Hamaker's comment:

"Isn't that what the license is doing ultimately, making OCLC 
policies the controlling point for intellectual property created 
by universities--or am I misunderstanding the intent?"

It appears that the proposed policy, 
<http://www.oclc.org/us/en/worldcat/catalog/policy/recordusepolicy.pdf> 
does not apply to the original bib records that a library creates 
and adds to WorldCat.  I think this is achieved through the 
definitions of "WorldCat Record" in section B(3) and "Original 
Cataloging" in section B(4).  The definition of "WorldCat Record" 
excludes bib records that a library does not "obtain[] directly" 
or "Derive[]" from WorldCat, and states expressly: "An OCLC 
Member . . . may Use or Transfer the following without complying 
with this Policy: (i) a WorldCat Record designated in WorldCat as 
the Original Cataloging of the OCLC Member or Non-OCLC Member." 
OCLC seems to confirm this interpretation in its FAQ, 
<http://www.oclc.org/worldcat/catalog/policy/questions/faq.pdf> 
page 3, number 9.

Respecting Jennifer Palmisano's comment that

"I don't think that any of these records are in the public 
domain":

Aaron Kuperman of LC reminded me this weekend that under Section 
105 of the Copyright Act, 
<http://frwebgate.access.gpo.gov/cgi-bin/usc.cgi?ACTION=RETRIEVE&FILE=$$xa$$busc17.wais&start=137432&SIZE=9048&TYPE=TEXT> 
all original bib records created by LC and the other national 
libraries and federal agency libraries (which collectively make 
up a large share of the WorldCat database) appear to be in the 
public domain, because they are works of the U.S. Government.

***

Aaron Kuperman's excellent comments on the AUTOCAT listserv 
prompted the following additional suggestions for arguments in 
favor of a copyright in individual bib records created by persons 
other than U.S. federal government employees: The statute and 
cases seem to suggest two avenues by which copyright could attach 
to an individual bib record containing noncopyrightable material: 
under Section 102(a)(1) of the Copyright Act, if the record 
"integrates" the noncopyrightable material with copyrightable 
expression; or as a compilation under Section 103 of the 
Copyright Act, through the selection and arrangement of the 
noncopyrightable material.  More detail on this appears in the 
last paragraph below.

Respecting individual original bib records created by persons 
other than federal government employees, the following might be 
considered factors weighing in favor of a finding of 
copyrightability under Section 102:

*the presence of substantial original prose, such as in field 520 
summary notes (i.e., abstracts);

*use of classification numbers or codes not created by U.S. 
federal government employees (such as DDC or UDC);

*use of subject headings or subject terms not created by U.S. 
federal government employees (such as Sears headings, or genre 
terms from thesauri not created by LC or NLM).

Here are more detailed comments respecting a Section 103 
compilation copyright in individual bib records.  A Section 103 
compilation copyright appears to arise primarily from originality 
of selection and arrangement.  The fixed arrangement required by 
the MARC format (and perhaps also by AACR2) would seem to 
preclude a finding of original "arrangement."

That would leave originality of selection.  The statute and cases 
seem not to preclude a finding of originality of selection even 
where all of the components selected are noncopyrightable.  The 
cases seem to say that originality of selection lies primarily in 
whether the creator exercised sufficient judgment in selecting 
the included material.  "Selection implies the exercise of 
judgment in choosing which facts from a given body of data to 
include in a compilation."  Key Publ'ns. Inc. v. Chinatown Today 
Publ'g Enters., Inc., 945 F.3d 509, 512-13 (2d Cir. 1991).

I think the research on classification and subject analysis 
demonstrates the substantial expertise, knowledge, skill, and 
judgment required to properly apply sophisticated classification 
and subject headings systems such as LC Classification and LCSH. 
So it seems possible that a court could hold that a non-U.S. 
federal government employee, creating an original bib record 
which has for its sole call number one that comes from a 
sophisticated public domain classification system (such as LC or 
NLM classification) and has for its sole subject headings those 
drawn from a sophisticated public domain system (such as LCSH or 
MeSH), could exercise sufficient judgment in selecting or 
formulating that call number and subject headings, to warrant a 
finding of original selection, such that a compilation copyright 
attaches to the bib record.

In addition, if copyright were determined to attach to a bib 
record, whether the creating library put the bib record on a 
publicly available server (such as a Z39.50 server) for 
free-of-charge, unrestricted download (conduct which might be 
viewed as relinquishing copyright or granting a broad implied 
license) would seem to be a factor going to enforceability of 
that copyright.

Moreover, for certain types of works combining noncopyrightable 
and copyrightable material, the courts recognize what is termed a 
"thin" copyright, which protects only against copying of the 
specific wording and arrangement used in the work, but not 
against the creation of slight variations or derivative works. 
See Cont'l Cas. Co. v. Beardsley, 253 F.2d 702 (2d Cir.), cert. 
denied, 358 U.S. 816 (1958) ("[I]n the fields of insurance and 
commerce the use of specific language in forms and documents may 
be so essential to accomplish a desired result and so integrated 
with the use of a legal or commercial conception that the proper 
standard of infringement is one which will protect as far as 
possible the copyrighted language and yet allow free use of the 
thought beneath the language.").

In these situations, the courts, often for reasons of public 
policy, are reluctant to find infringement, although they may 
determine that the allegedly infringed work is copyrighted. The 
presence of noncopyrightable material in a work such as an 
individual bib record does not appear to preclude the attachment 
of copyright.  Courts have held that a work that combines 
noncopyrightable material, such as facts or public domain 
expression, with copyrightable material, may be protected as an 
original work under Section 102 of the Copyright Act, or as a 
compilation under Section 103 of the Copyright Act.

Courts have held that a work containing noncopyrightable material 
that is integrated with substantial prose, such as form books 
with instructions or commentary, may be copyrightable.  See Edwin 
K. Williams & Co., Inc. v. Edwin K. Williams & Co.-East, 542 F. 
1053 (9th Cir. 1976); Cont'l Cas. Co. v. Beardsley, 253 F.2d 702 
(2d Cir.), cert. denied, 358 U.S. 816 (1958).  Courts have also 
held that prose works such as histories are copyrightable where 
the noncopyrightable factual material is integrated with 
copyrightable expression.  See Hoehling v. Universal City 
Studios, Inc., 618 F.2d 972 (2d Cir. 1980) ("It is undisputed 
that Hoehling has a valid copyright in his book."); Nash v. CBS, 
899 F.2d 1537 (7th Cir. 1990) (Easterbrook, Cir. J.) ("The 
district court determined that the books' copyrighted material 
consists in Nash's presentation and exposition, not in any of the 
historical events.")

At least some post-1976 Act courts, such as the 7th Circuit in 
Hoehling and Nash, appear to have considered such integrated 
works copyrightable under Section 102(a)(1) of the Copyright Act. 
Courts have also held that, respecting certain works that contain 
noncopyrighted material, a compilation copyright may attach to 
the selection and arrangement of that material pursuant to 
Section 103 of the Copyright Act. See Rockford Map Publ'rs, Inc. 
v. Directory Serv. Co., 768 F.2d 145 (7th Cir. 1985) 
(Easterbrook, Cir. J.), cert. denied, 474 U.S. 1061 (1986); Roth 
Greeting Cards v. United Card Co., 429 F.2d 1106 (9th Cir. 1970).

Robert Richards
richards1000@comcast.net

The comments above are not offered as legal advice, and do not in 
fact constitute legal advice.