Vol 7 No 1 - Roger Williams University School of Law

ideas. Copyright law has long taken the view that it protects theexpression of data/ideas but not the raw data/ideas themselves.45This view is known as the idea/expression dichotomy and is nowembodied in the TRIPs agreement: “Copyright protection shallextend to expressions and not to ideas, procedures, methods ofoperation or mathematical concepts as such.”46In the United States Supreme Court decision in FeistPublications, Inc. v. Rural Telephone Service Co.,47 it was heldthat raw data, namely entries in a telephone directory, was notsubject to copyright protection. The Court explained:The sine qua non of copyright is originality. To qualifyfor copyright protection, a work must be original to theauthor . . . . Original, as the term is used in copyright,means only that the work was independently created bythe author (as opposed to copied from other works), andthat it possesses at least some minimal degree ofcreativity. To be sure, the requisite level of creativity isextremely low; even a slight amount will suffice. Thevast majority of works make the grade quite easily, asthey possess some creative spark, “no matter how crude,humble or obvious” it might be . . . . Originality does notsignify novelty; a work may be original even though itclosely resembles other works, so long as the similarity isfortuitous, not the result of copying. To illustrate,assume that two poets, each ignorant of the other,compose identical poems. Neither work is novel, yet bothare original and, hence, copyrightable.Originality is a constitutional requirement . . . In TheTrade-Mark Cases, the Court addressed theconstitutional scope of “writings.” For a particular workto be classified “under the head of writings of authors,”the Court determined, “originality is required.” TheCourt explained that originality requires independentcreation plus a modicum of creativity: “[W]hile the wordwritings may be liberally construed, as it has been, toinclude original designs for engraving, prints, &c., it is45. See Feist Publ’ns, Inc. v. Rural Telephone Serv. Co., 499 U.S. 340 (1991).46. TRIPS, supra note 5, at art. 9 cl. 2.47. 499 U.S. 340 (1991).