54:2 Functional Compilations

Abstract

At some level, every human-made creation is a compilation. Yet, most of them do not qualify for copyright protection because the selection and arrangement of their component parts is inherent in the functional purpose for which they were designed. The Supreme Court’s decision in Feist Publications, Inc. v. Rural Telephone Service Co. established that works of authorship must be “original” to qualify for copyright protection and that originality requires a “modicum” of creativity. However, the Court did not say how much or what kind of creativity would satisfy this standard.

In the years since Feist, courts have sometimes rejected compilation copyright claims because the compilation was too functional to be protectable. Sometimes they have relied upon copyright’s exclusions of methods and systems to say that a systematic or methodical selection and/or arrangement of information is uncopyrightable. Other times, they have invoked the merger doctrine, as when the selection and/or arrangement was dictated by functionality. Still other decisions have ruled that functional selections or arrangements lack the originality necessary to qualify for copyright protections. This Article intends to unify the functional compilation case law by pointing out that regardless of the doctrinal hooks or linguistic characterization courts use, it is the functionality of these compilations that limits copyright.

Functionality as a general basis for disqualifying some compilations from copyrights has not been widely recognized in the case law and law review literature. Some judges and commentators reject the idea that functionality is ever a limit on copyright (except maybe as to pictorial, graphic, and sculptural works whose expressive elements cannot be separated from functional elements). This Article demonstrates that functionality does and should limit the protectability of compilations. It gives examples of four types of functionality that courts have identified in the compilation case law: mechanically derived compilations, compilations dictated by function, systematic or methodical compilations, and compilations whose selection and arrangement were constrained by external factors or efficiency.

Copyright aims to protect not originality per se, but expressive originality. Some compilations satisfy the expressive originality standard, but others do not. Since Feist forbids granting copyright protection based on a sweat-of-the-brow rationale, functional compilations would seem to lie largely outside the bounds of copyright protection. Even if protectable, the scope of copyright protection in functional compilations is and should be quite thin, requiring proof of exact or near-exact copying.