Dennis S. Karjala[*]
ABSTRACT: The Feist case raises serious problems for the copyright protection of maps, especially digitized geographic information systems. Lower courts have been struggling with various theories under which they can protect the economic value inherent in such works. All these theories suffer from serious theoretical and practical problems, largely because they seek surreptitiously to revive the "sweat of the brow" theory of copyright originality expressly rejected by Feist. Absent clarifying statutory amendment, courts are likely discard the principle that copyright protection is coextensive with the expressive originality on which copyright is based: Copyright in geographic information systems will be recognized wherever "creativity" is found, but the scope of protection will be determined through analysis of economic incentives. Copyright once again becomes an antimisappropriation tool.
CITATION: Dennis S. Karjala, Copyright in Electronic Maps, 35 Jurimetrics J. 395-415 (1995). Reprinted by permission.
Maps have always been protected by our Copyright Act. Notwithstanding this long history, however, the protection of maps still poses serious problems for both copyright theory and practice. The problems arise from the tension between the principle that maps are protected and two other basic principles: namely, that copyright does not protect facts and that copyright does not protect systems. Traditional maps are pictorial representations of geographic and demographic facts organized to allow the user to readily understand and easily extract the factual information portrayed. The factual information, such as boundary lines and locations of landmarks, is supposedly unprotected. The organizing principle for presenting the information will often, if not always, be deemed an unprotected system or idea. Thus, many maps will apparently contain only unprotected elements. Can the map "as a whole" be protected even though all the elements that comprise the map remain unprotected?
The digital age exacerbates the problem. Today's comprehensive geographic information systems may simply constitute electronically stored collections of spatial and nonspatial data, which under traditional copyright law are more naturally classified as "compilations" rather than "maps." Consequently, a theory of copyright protection for electronic maps must go beyond the traditional model of a map as a visual representation of selected geographic and other data.
The tension among traditional copyright principles as they apply to maps has been heightened by Feist Publications, Inc. v. Rural Telephone Service Company, Inc. This decision, as a strict matter of legal precedent, deals with factual compilations rather than pictorial maps. Nevertheless, it contains strong language purporting on constitutional grounds to limit the copyright protection of fact-based works generally--language that seems inescapably applicable to geographic information systems developed and maintained as electronic databases. The Feist decision relentlessly follows standard copyright dogma to a superficially unremarkable conclusion: copyright protects only expression, not facts; the expression protected must be the product of intellectual creativity and not merely labor, time, or money invested; the protected elements of the resulting work are precisely those that reflect this intellectual creativity, and no more. Thus, Feist requires intellectual creativity in the originality standard and maintains the relationship between that standard and the scope-of-protection, by which courts specify the elements of a protected work that remain under control of the author and those that may be freely used by others.
While it is difficult to fault Feist's formal logic, honest application of the decision would deny copyright protection to a variety of works whose optimal production, as a matter of social policy, may require some form of intellectual property right as an incentive. Many of these works involve compilations of rapidly changing or updated data, for which the long period of copyright protection in any event seems inappropriate. In these cases, short-term protection for the results of time-consuming and expensive "sweat" rather than long-term protection for literary or artistic creativity appears more consonant with overall social policy goals--that is, protection under some sort of antimisappropriation regime.
Nevertheless, in the digital age, the misappropriation to which these works of "low authorship" are vulnerable is that of straightforward and inexpensive copying. This in turn means that state misappropriation law is likely preempted. If copyright protection is not available, such works will predictably be available for a higher price only to those relatively few purchasers whose subsequent use of the information can be controlled by contract. Works for which such limited markets provide little chance of a return of their creators' investments are not likely to be produced at all. Federal courts, recognizing the social desirability of having these kinds of works as freely available as possible, can be expected to struggle to ensure that the law does not create disincentives to production. They will seek to bring these works back under the copyright umbrella, despite the dictates of the Supreme Court in Feist. That is, the courts can be expected to try to use copyright as an antimisappropriation tool. The result can be "fairer" in an individual case in the sense that a determination of copyright infringement makes the appropriation unlawful, but it may distort traditional copyright principles and even lead to problems of overprotection.
Not surprisingly, the federal courts are now struggling with this very problem. This article begins by examining the creation disincentives that Feist has engendered. It then analyzes three new theories that the post-Feist cases have developed to deal with the problem: (1) the "sweat of the brain" theory, (2) finding copyright creativity in an organizational scheme or principle, and (3) the recent effort of the Second Circuit to separate the originality upon which a copyright is recognized from the scope of protection afforded to a copyright-protected work. These theories suffer from serious deficiencies, largely because they seek to resurrect the "sweat of the brow" theory that Feist condemned. Consequently, the article concludes that a new approach is necessary for the protection of maps, especially digitized geographic information systems. In the long run, that approach may require either a statutory amendment to the definition of "compilation" under the Copyright Act or the adoption of a sui generis database-protection statute.
I. CREATION DISINCENTIVES AFTER FEIST
Feist leaves a number of desirable works without meaningful legal protection, even though they can be costly to create but cheaply and rapidly copied. Under Feist, a factual compilation is protected only if, and only to the extent that, its author displays intellectual creativity either in the selection of the facts contained or in their arrangement as presented. An electronic database, of course, presents no "arrangement" to its user (as opposed to the user interface presented by the computer program that organizes and searches the database), so under an honest reading of Feist a complete (nonselective) factual database would be wholly unprotected by copyright. The same would be true for "attribute" (or demographic) data collected pursuant to some standardized selection scheme and stored in a computer. "Barebones" pictorial maps showing only standard features also present nothing but a routine arrangement of factual information--even when they are the result of painstaking and costly surveys or other data-gathering. If Feist applies to these maps, they will be denied copyright protection even against slavish takings, such as photocopying.
It would not help the creators of barebones maps very much to add "creative" features of style or color to their maps, because even if the features are sufficiently creative to qualify the map for copyright, the scope of protection under Feist will cover only the unnecessary and perhaps unwanted features. The factual information concerning the relative locations of geographic features could be freely taken, even by tracing (as long as the protected features are avoided). The absence of meaningful copyright protection means no legal protection for these kinds of works at all, except to the extent that creators can keep works confidential and can control their use by contract. Knowing this, potential creators would not be expected to undertake the investment necessary to produce works that must be publicly distributed in order to recoup investment costs with a fair return. Moreover, where such works are produced, we should expect their creators to control use by limiting distribution, which means a higher unit cost to those buying the work and a lower overall availability.
A number of pre-Feist courts sensed the vulnerability of such fact-based works to misappropriation and sought to afford them copyright protection. Maps, in fact, posed little problem for most pre-Feist courts, because of their explicit inclusion in the list of protected works under the Copyright Act. Courts often protected factual compilations, even in the face of a demonstrated failure of creativity in the selection or arrangement of their contents. These courts found the necessary copyright originality in the "industrious collection" or "sweat of the brow" expended by their creators, but rarely articulated the relationship between the originality that justified copyright protection and the scope of that protection. Moreover, the approach flatly ran counter to the statutory definition of a "factual compilation," which specifically relates the originality requirement for compilations to selection, coordination, or arrangement of the data or preexisting materials that the compilation contains. This "sweat of the brow" approach to originality was the subject of much critical commentary, and the Supreme Court expressly disproved of it in Feist.
Vulnerability to misappropriation, however, does not go away simply by waving a magic wand, even when the United States Supreme Court plays the magician. Many judges react almost instinctively against misappropriative activities that appear unfair, even if they do not articulate their views in terms of creation disincentives or other market-based arguments. It is not surprising, therefore, that some courts have tried to circumvent Feist by developing new theories of copyright originality. One theory might be denominated "sweat of the brain," in that it finds a work to be copyright protected when creative intellectual decisionmaking goes into the process of creating the product, even though none of the creativity is evident in the final product itself. Another theory looks for creativity in the organizational scheme or principle underlying the work. Both these theories ultimately conflict with the tenet that copyright protection, which arises automatically upon creation of the work and continues for roughly 75 years, does not extend to facts, theories, systems, or discoveries.
The Second Circuit has recently attempted to steer a safer course by divorcing the finding of originality from the scope of protection. The result, however, not only resurrects the "sweat of the brow" theory under another name, flatly contradicting the dictates of Feist, but it also fails, at least without further jerryrigging, to resolve the tension between the antimisappropriation goal and the inappropriateness of protecting functional works under copyright. These three post-Feist approaches to copyright as an antimisappropriation statute are analyzed in more detail in the following sections of this article.
II. "SWEAT OF THE BRAIN" THEORY
An example of the "sweat of the brain" theory applied to maps is Mason v. Montgomery Data, Inc.,14 which involved real estate tract maps showing location, tract size and shape, deeds, abstract numbers, acreage, and tract ownership, along with other topographical features. Expert testimony proved that maps created by independent mapmakers would show differences in many features, resulting from "each mapmaker's selection of sources, interpretation of those sources, discretion in reconciling inconsistencies . . . and skill and judgment in depicting the information," and this evinced the creativity necessary for copyright protection. Other cases similarly have relied on a finding of intellectual creative activity in the process of creating the work to conclude that the work was protected, even where there was no evidence of creativity in the final product except in the accuracy of its avowedly factual content.
Putting aside for the moment the possibility of creative expressivity in the mapmaker's choice of landmarks or other data actually shown on the resulting map, the end product in a case like Mason evidences none of the intellectually creative judgment of the mapmaker except when compared with similar products of other mapmakers. Moreover, accuracy in the factual information presented is the goal of all such mapmakers (not to mention a desideratum of their users). Nobody buys these maps for the very slight variations in the features portrayed (such as boundary locations) that represent the mapmaker's personality or judgment, except to the extent that a given mapmaker has a reputation for greater accuracy. And a dispute about which map is more nearly correct with respect to a given factual question can, at least in principle, be decided with relative objectivity. If such information is deemed "non-factual" because of the intellectual judgment involved in determining it, little information will ever be denied copyright protection on the ground that it is unprotected fact, and much factual discourse will run close to the borderline of copyright infringement.
The approach to originality in maps taken by Mason also stands in stark contrast to pre- and post-Feist cases (and even Feist itself) that require expressive creativity in the end product independent of the manner or methodology by which the product was created. The clearest example is the denial of copyright protection to the products or conclusions of historical or scientific research. Surely these products or conclusions require the exercise of at least as much intellectual creativity in selecting sources, designing experiments, reconciling discrepancies, or interpreting results as the mapmaker applied in Mason. Even the telephone white pages at issue in Feist, at least if they were to be created from scratch and not, as in the actual case, from information already stored in a computer, would involve some minimal intellectual judgment concerning such questions as how the information should be collected, how to reconcile discrepancies, and how to insure completeness. Therefore, as a practical matter, widespread adoption of the "sweat of the brain" theory would render Feist meaningless.
One might attempt to reconcile Mason with Feist by distinguishing between "discovered facts," expressly ruled unprotected by Feist, and "created facts"--purportedly factual information generated by the creative intellectual processes of the person claiming authorship in them. It is true that Feist makes several references to facts as independently existing and therefore capable only of "discovery" rather than creation by humans. Nevertheless, facts contained in historical and biographical works are as much the product of the author's creative interpretation as the boundary lines of maps or the values of used cars, but Feist cites with approval cases expressly denying copyright protection in these contexts. Moreover, the legal boundary between two tracts of land is very much a preexisting "fact," even if two different surveyors would place it slightly differently as a result of their different data-gathering or data-interpretation techniques. It is surely closer to a preexisting fact than information created out of whole cloth but presented as factual truth, which the courts uniformly treat as unprotected fact under copyright.
Another objection to Mason is that its approach to copyright originality seems more naturally classified as "idea" rather than "expression." Imagine, for example, that the mapmaker in Mason publicly announced the sources on which he relied as well as his detailed methodology for reconciling discrepancies. Few would argue that another mapmaker would infringe who, on the basis of that announcement, chose to consider those sources and adopt the announced methodology in the process of otherwise independently making a similar map. Noninfringement, however, means that the decision to use those sources and that methodology is idea rather than expression, however creative the decision may be.
Reliance on the "sweat of the brain" theory--finding the creativity necessary for copyright in the intellectual process by which a work is produced--thus requires both distinguishing Feist in a meaningful way that does not decimate a Supreme Court precedent as well as a theory of the scope of protection that is severed from the creativity (an unprotected intellectual process) that brings the work under copyright protection. Formally, Feist can be distinguished for pictorial maps. Electronic databases, however, represent another problem.
III. CREATIVITY IN THE ORGANIZATIONAL
SCHEME OR PRINCIPLE
Copyright protection requires originality, and Feist says that originality requires some modicum of "creativity." Mason and the "sweat of the brain" cases find the necessary creativity in the intellectual process by which a work is produced, although the final product may be no more than a simple boundary line or even a single number. Other cases attempt to get around the Feist requirement by looking for creativity in the organizational scheme or principle by which facts are selected or arranged in the resulting work. This approach runs a serious risk of protecting creative functional ideas or standardization schemes. Taken to its extreme, it would allow entire classes of maps, such as contour maps, to be monopolized for the full period of copyright by the first mapmaker who devises a new and useful representational scheme. Section 102(b) of the Copyright Act, as well as the venerable case of Baker v. Selden, should prohibit copyright protection for organizational schemes or principles.
Professor Gorman has suggested that an original arrangement can lead to copyright protection not for the abstract principle by which the materials are organized, but for the particular organization generated by a specific application of the principle. It is not clear, however, where this approach to copyright originality would leave a second comer who independently assembles the same facts and arranges them according to the same principle. If this activity infringes copyright, it must be that the abstract principle is protected, because the individual facts are not copied. On the other hand, to deny infringement on these facts raises the question of what the copyright protects. The second work shows precisely the same relationship between the creative organizing scheme and the assembled facts. If application of the creative principle to independently gathered facts does not infringe, the copyright protection for the first compiler does not cover the originality on which the first copyright is based, namely, a creative abstract organizing scheme applied to specific facts. This conclusion is contrary to Feist and to traditional copyright jurisprudence, which say that the copyright protects precisely the originality on which the copyright is based.
In any event, even Professor Gorman's approach to copyright originality will leave many maps without protection. Whether or not the preparation is costly or time-consuming, the value of many maps inheres in the factual information they contain and not in clever ways of presenting that information. If legal protection is a necessary incentive to the creation of such maps, this theory of copyright originality will not supply it.
Similarly, basing copyright protection on the mapmaker's selection of landmarks or other data, all of which would be permitted by Feist (if creative), does not address the problem at its most fundamental level. The scope of copyright protection has always been tied to the originality (creativity) on which the copyright is based. If we retain this relationship, relying on creative selection will leave many maps without meaningful protection. First, the choice of data to include may represent an organizational principle excluded from protection under section 102(b). Second, the landmarks chosen often will be the obvious or natural landmarks for that particular kind of map, in which case copyright protection is denied for want of creativity. Third, even if a particular selection of landmarks or other features can be deemed subjective, nonfunctional, and unnecessary for the map's intended use, a copier can avoid infringement simply by taking all of the other information from the map without taking the subjectively chosen and unnecessary features.
IV. CREATIVITY IN IDEA COUPLED WITH
LIMITED SCOPE OF PROTECTION
Thoughtful pre-Feist commentators argued that courts should find the necessary originality for copyright protection in the social contribution of gathering, verifying, and presenting useful information. The courts could then effect the social policy balancing between incentives and free use through scope-of-protection and fair use analysis, looking at such factors as the public interest in increased access, the extent of the copying, and the degree of competitive impact. Professor Denicola's approach of finding originality in the collection as a whole would permit extraction of individual facts and would find infringement only when the copying results in a substantially similar collection.
But Feist explicitly rejects "industrious collection" as a basis for copyright originality while maintaining the traditional relationship between originality and the scope of protection: "Originality remains the sine qua non of copyright; accordingly, copyright protection may extend only to those components of a work that are original to the author." This creates the unpalatable choice discussed in the previous two sections between failing to protect the economically valuable aspects of many low authorship works, such as digital spatial data, or recognizing copyright originality in creative methodologies for collecting or presenting the information, contrary to section 102(b) and Baker v. Selden. To adopt Professor Denicola's approach would place a lower court in direct defiance of Feist, while expressly to divorce the scope of protection from originality would be contrary to long-standing copyright tradition strongly restated by Feist.
Nevertheless, courts continue to try. A recent Second Circuit decision follows the many post-Feist courts that find "creativity" in the production of numbers and other data where economic value would otherwise be vulnerable to incentive-eroding piracy. The court, however, seems to recognize that complete protection of all of the fruits of that creativity might not be in the public interest. As a result, the court struggles hard for a principle that would limit the scope of protection while inhibiting misappropriative copying.
In CCC Information Services, Inc. v. Maclean Hunter Market Reports, Inc.,37 Judge Leval directed the entry of summary judgment in favor of the defendant copyright claimant, which published a used car buying guide known as the "Red Book." As to copyright originality, the court concludes that the estimated vehicle values in the Red Book were not "discovered" preexisting facts, such as the telephone numbers in Feist, but rather represented predictions of future prices in various geographical areas, based on a multitude of information sources as well as the exercise of professional judgment and expertise. In this sense, the valuations were the "original creations" of Maclean. The court also finds sufficient originality for copyright protection in the selection and arrangement of the valuations, based on Maclean's division of the national used car market into various regions, choices concerning optional features, using 5,000-mile breakpoints for mileage, the use of the concept of the "average" vehicle in each category, and the selection of the number of years for which models would be included. Judge Leval concludes that designing the arrangement of the data to respond logically to the needs of the market does not negate originality.
To this point, Judge Leval appears to be using both of the theories discussed in the previous two sections, finding copyright originality in both a creative methodology for producing the valuations and in the organizing scheme for presenting them. Had he stopped there, the case would simply be another example of a court's straining to avoid an apparently unfair misappropriation of costly production efforts. However, Judge Leval goes on to consider with some care the idea-expression distinction and the merger doctrine. The opinion recognizes the importance of free public access to ideas and concedes that the valuations given in the Red Book are simply the expression of the authors' idea for the values of the vehicles covered. The opinion concludes that an incentive to authors must be balanced against free access and that to treat the valuations as unprotected ideas would negate the application of copyright protection for compilations.
In drawing the balance, Judge Leval distinguishes between two kinds of ideas: ideas that "undertake to advance the understanding of phenomena or the solution of problems" and "soft ideas infused with taste and opinion." As to the first category, protecting expression necessary to expression of the idea would remove building blocks of free discussion. As to the second category, however, to deny application of the merger doctrine does not risk serious injury to the policy favoring free use of ideas. He concludes that the Red Book valuations are in this second category, as they are infused with opinion and describe no method or process.
Section 102(b) provides, of course, that copyright protection does not extend to any idea and would not seem to permit the distinction between unprotected "building block" ideas and protected "soft" ideas. Moreover, this distinction between two different classes of ideas would seem to protect not only the compilation as a whole but each of the valuations individually, thereby making anyone who writes down Red Book valuations for a particular class and sends the list to a friend a potential infringer. Judge Leval seems to anticipate this objection, however, by noting that CCC's copying was "of virtually the entire compendium." This implies that a lesser taking might not infringe.
This latter thought challenges the traditional relationship between copyright originality and the scope of protection. By hypothesis, the exercise of professional judgment and expertise has lead to the creation of "soft" (and therefore protected) ideas, namely, the individual valuation estimates. This is the originality on which copyright protection is based. But each valuation estimate requires roughly the same exercise of judgment. If taking some limited number of the valuations does not infringe, that much of the author's originality would be unprotected. The result is copyright protection for the work as a whole, based on creativity in the process of producing the valuation estimates, but with a limited scope of protection (perhaps even limited to wholesale takings).
Several objections spring to mind. Judge Leval cites with apparent approval cases relying on one or the other of the theories discussed in the earlier sections. By finding copyright originality in the selection or arrangement of data that responds logically to market demands, he invites 75 years of copyright protection for the kinds of classification schemes that normally reach optimal form through incremental improvement--an approach that can stop improvement in its tracks in view of the vagueness of copyright's "substantial similarity" standard for infringement. Suppose, for example, that a particular geographical division or the use of 5,000-mile breakdowns does respond logically to market needs. We want competitors to take those choices that are working well and tinker with them to make the collection more useful, as long as they do their own work in estimating the values of the vehicles so that they do not undercut incentives. We are no longer concerned with artistic creativity but rather with the usefulness of informational tools. Requiring competitors who do their own work in estimating values to use substantially different geographical or mileage breakdowns just to be different can reduce competition once one of their number has hit upon an optimal or near optimal combination. People rarely read the same novel or see the same movie over and over; they want variety in these works, which is why the long period of copyright protection does not inhibit competition in the market for books or films. Useful classification schemes, however, are repeatedly employed, like any other tool. That is the reason section 102(b) denies copyright protection to procedures, systems, and methods of operation, and the reason Baker v. Selden emphasizes reserving patent law for functional works.
Moreover, Judge Leval's classification of ideas for merger purposes purports to be derived from Kregos v. Associated Press,49 which did not involve wholesale taking of data, or indeed any data, from a compilation. Rather, Kregos involved a method for presenting data, all of which was independently calculated by the defendant anew each day. This reliance on Kregos further reduces the chance that later courts will interpret CCC Information Services as an antimisappropriation case and, indeed, supports the interpretation that the functional classification scheme is copyright protected.
Nonetheless, by applying the merger doctrine in the infringement rather than the copyrightability analysis, the opinion in CCC Information Services does at least hint at the direction in which the law should move. Given Feist and the Second Circuit's precedents, it would hardly have been possible for Judge Leval to have been more explicit about what he was doing. If later courts do manage to interpret the correct message of this case--if they begin to reapply the "sweat of the brow" doctrine with a more careful analysis of the scope of protection in particular situations--they will repair much of the damage that Feist created when it removed protection from "low authorship" works that are vulnerable to piracy. And, they will reduce the dangers of competition-choking copyright protection of representational ideas and systems under the other theories that courts have adopted to circumvent Feist. Eventually, however, we need either a forthright admission that copyright law is being used to achieve socially desirable antimisappropriation ends regardless of "artistry" or "authorship," or a new statutory scheme expressly focused on the misappropriation problem.
V. THE PROTECTION OF MAPS
Feist poses a serious problem for the protection of maps. Attempts to circumvent Feist by finding creativity in the process of producing the work, in its organizational scheme, or in its selection of landmarks or other features either do not succeed in supplying protection to those elements of the map that give it economic value or contradict long-accepted copyright principles. If Judge Leval's apparent attempt in CCC Information Services to revive the "sweat of the brow" theory of protection survives, an additional theory for the scope of copyright protection in maps must give sufficient incentive to their production while permitting later mapmakers to use and improve upon the useful (but unpatented) representational tools and classification schemes developed by their forebears. In fact, this is the real problem for pictorial maps today, because as a strict matter of legal precedent, Feist does not apply to them.
For more general geographic information systems in the form of electronically stored collections of data that never existed in pictorial form, we will find adequate protection only through one of three approaches. The first is a carefully tailored elaboration of Judge Leval's recognition of copyright protection for the work as a whole based on whatever appears to be creative in the work, whether that element represents traditionally unprotected "fact" or "idea," or traditionally protected "expression." The scope of protection must then be adjusted by a sensitive balancing of production incentives against free use and improvement (especially of functional aspects). This approach suffers from the problem that it must be developed judicially, directly in the face of Feist. The second approach is a statutory amendment of the definition of "compilation" to accommodate a broader range of "low authorship" works. The third approach is a sui generis statute, aimed either at electronic databases in particular or at works vulnerable to misappropriation in general. In theory, one of these last two choices is preferable, but getting Congress to act, and to act sensibly, has its own difficulties.
I outline briefly in the next subsections the current jurisprudential problems we face in the protection of pictorial maps and of more general electronically stored geographic information systems.
A. Pictorial Maps
As has been indicated above, developing an appropriate theory of map protection is very difficult if Feist is applicable. This may be the single most important lesson to be gleaned from the post-Feist cases that have struggled to protect economically valuable products that appear vulnerable to inex-pensive appropriation. One possibility, at least for pictorial maps, is simply to confine Feist to its factual context. While the language of Feist is broad, the case dealt with a compilation of facts, and the Feist decision could easily have rested on the Court's analysis of the statutory definition of "compilation" without resort to global constitutional analysis. Pictorial maps are classified as "pictorial, graphic, and sculptural works" under the statute. They are therefore not strictly covered by Feist's factual holding. Although one does not lightly ignore language in a Supreme Court opinion, nothing in the Feist decision indicates that the Court was aware of the sweeping and negative effect its language would have on the protection of pictorial maps--works that have been covered by our copyright statutes from the beginning.
Even assuming that Feist does not apply to pictorial maps, however, we are left with the problems of determining which maps are protected and defining the scope of their protection. The first task is relatively easy. The "creativity" requirement that Feist added to the copyright notion of originality should be dropped, and a map should be copyright protected when it is the product of its maker's intellectual effort, that is, when it is not copied from another map. This would cover original survey maps as well as original compilations of preexisting maps.
Defining the scope of pictorial map protection is much more difficult. Having divorced the "originality" problem from the scope-of-protection problem, we must articulate new standards for determining those uses of the factual information contained in maps that should remain under the control of the author. At a minimum, maps must be protected against mechanical or electronic copying if the copyright is to have any meaning. At the other extreme, it should be clear that a competitor's independent gathering of the factual information cannot infringe, even if the idea for making the competing map comes from having seen the first one and the end result is indistinguishable. Thus, the factual information in the protected map should not protected as such. It should be protected only against certain methods of appropriation, such as photocopying. To this extent, copyright would become an antimisappropriation statute rather than a general statute for the protection of artistic creativity.
Precisely what methods of taking or using factual information contained in a protected pictorial map should be deemed infringement is a policy judgement that requires delicate balancing of the need for incentives to produce maps against the social loss in requiring constant reinvention of every wheel. Certainly whether the information taken is used to make a noncompeting product or is put to productive use in improving an existing product will be relevant, as will the amount taken. Probably the key question is whether the method of taking allows the copier to undercut the price of the original product before the original creator has a fair chance to recoup investment costs.
B. Geographic Information Systems as Collections of Data
If a map exists in pictorial form and is deemed copyright protected following the analysis in the previous subsection, it would not lose its protection when the information it portrays is digitized and stored in an electronic database. However, many geographic information systems may simply be collections of data that have never existed as a coherent whole in pictorial form. It is difficult to find a copyright classification for such collections outside of "compilation," and that implies all of the Feist limitations on copyright protection. Data stored in an electronic database have no discernible "arrangement" that can serve as the basis for copyright originality, so protection arises at best from a creative "selection" of the data stored. When, therefore, data are collected according to a standard classification scheme, or when the data are in some sense "complete" so that there can be no creative selection, copyright protection, under Feist, simply will not attach. Anyone having access to the data may legally download all of it without liability for copyright infringement. Moreover, even if some creative selection can be found as a basis for copyright protection, an even more selective taking would not infringe. Possibly, even an entire taking would not infringe if the copier adds additional data to the collection, because the end product would no longer reflect the "creative" selection of the original.
All these situations create disincentives to the costly production of valuable data and its delivery in useful electronic form. Moreover, when someone does assemble the data, in many cases access is likely to be restricted to persons whose use can be controlled by contract. One way to overcome these problems may be to ignore Feist by reviving the "sweat of the brow" theory in the manner suggested by CCC Information Services. Copyright protection would be based on perceived "creativity" in the methodology of gathering or presenting the information contained, but the scope of protection would be determined through analysis of economic incentives. In particular, infringement could be limited to wholesale appropriations, or even just competitive wholesale appropriations. The only "legitimate" remedy, however, in view of Feist, is either a statutory amendment of the "compilation" definition or a sui generis database-protection statute.
"Confusion" is the best description of the state of post-Feist copyright protection of maps, especially digitized geographic information systems. The lower courts are struggling to avoid the strictures of Feist, because they see that costly and economically valuable products are vulnerable to misappropriation. These courts cannot directly contradict Feist, and they do not wish to contradict other long-standing principles of copyright, such as the non-protection of ideas, systems, procedures, and concepts under section 102(b) or the principle that copyright protection is coextensive with the expressive originality on which the copyright is based. Something, however, must give way. Courts cannot simultaneously follow Feist, remain faithful to these long-standing copyright principles, and protect all works they wish to protect. Implicitly, therefore, the courts seem to be reviving the "sweat of the brow" theory of copyright protection supposedly rejected by Feist. When the dust clears, the principle most likely to have fallen by the wayside is the one linking copyright protection to the original features of the work on which the copyright is based, and we are likely to see a separation of copyright "originality" in a work from the scope of its copyright protection. In essence, this is the "sweat of the brow" theory under another name, but by the time the Supreme Court takes another look at the problem, its members may better understand the damage that Feist has wrought and be willing to rethink the issue in terms that better balance the tension between production incentives for these works and the social value in freer use by second comers.