[Federal Register Volume 77, Number 121 (Friday, June 22, 2012)]
[Rules and Regulations]
[Pages 37605-37608]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-15235]
=======================================================================
-----------------------------------------------------------------------
LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 201
[Docket No. 2012-6]
Registration of Claims to Copyright
AGENCY: Copyright Office, Library of Congress.
ACTION: Statement of Policy; Registration of Compilations.
-----------------------------------------------------------------------
SUMMARY: The Copyright Office issues this statement of policy to
clarify the practices relating to the examination of claims in
compilations, and particularly in claims of copyrightable authorship in
selection and arrangement of exercises or of other uncopyrightable
matter. The statement also clarifies the Office's policies with respect
to registration of choreographic works.
DATES: Effective June 22, 2012.
FOR FURTHER INFORMATION CONTACT: Robert Kasunic, Deputy General
Counsel, Copyright GC/I&R, P.O. Box 70400, Washington, DC 20024-0400.
Telephone (202) 707-8380; fax (202) 707-8366.
SUPPLEMENTARY INFORMATION: The Copyright Office is issuing a statement
of policy to clarify its examination practices with respect to claims
in ``compilation authorship,'' or the selection, coordination, or
arrangement of material that is otherwise separately uncopyrightable.
The Office has long accepted claims of registration based on the
selection, coordination, or arrangement of uncopyrightable elements,
because the Copyright Act specifically states that copyrightable
authorship includes compilations. 17 U.S.C. 103.
The term ``compilation'' is defined in the Copyright Act:
A ``compilation'' is a work formed by the collection and
assembling of preexisting materials or of data that are selected,
coordinated, or arranged in such a way that the resulting work as a
whole constitutes an original work of authorship.
17 U.S.C. 101 (``compilation''). This definition's inclusion of the
terms ``preexisting material'' or ``data'' suggest that individually
uncopyrightable elements may be compiled into a copyrightable whole.
The legislative history of the 1976 Act supports this interpretation,
stating that a compilation ``results from a process of selecting,
bringing together, organizing, and arranging previously existing
material of all kinds, regardless of whether the individual items in
the material have been or ever could have been subject to copyright.''
H.R. Rep. 94-1476, at 57 (emphasis added).
Viewed in a vacuum, it might appear that any organization of
preexisting material may be copyrightable. However, the Copyright Act,
the legislative history and the Supreme Court's decision in Feist
Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 346 (U.S.
1991), lead to a different conclusion.
In Feist, interpreting the congressional language in the section
101 definition of ``compilation,'' the Supreme Court found protectable
compilations to be limited to ``a work formed by the collection and
assembling of preexisting material or data that are selected,
coordinated, or arranged in such a way that the resulting work as a
whole constitutes an original work of authorship.'' Feist at 356,
quoting 17 U.S.C. 101 (``compilation'') (emphasis by the Court). The
Court stated:
The purpose of the statutory definition is to emphasize that
collections of facts are not copyrightable per se. It conveys this
message through its tripartite structure, as emphasized above by the
italics. The statute identifies three distinct elements and requires
each to be met for a work to qualify as a copyrightable compilation:
(1) The collection and assembly of pre-existing material, facts, or
data; (2) the selection, coordination, or arrangement of those
materials; and (3) the creation, by virtue of the particular
selection, coordination, or arrangement, of an ``original'' work of
authorship * * *.
Not every selection, coordination, or arrangement will pass
muster. This is plain from the statute. * * * [W]e conclude that the
statute envisions that there will be some fact-based works in which
the selection, coordination, and arrangement are not sufficiently
original to trigger copyright protection.
Feist, 499 U.S. at 357-358 (U.S. 1991)
The Court's decision in Feist clarified that some selections,
coordinations, or arrangements will not qualify as works of authorship
under the statutory definition of ``compilation'' in section 101.
However, a question that was not present in the facts of Feist and
therefore not considered by the Court, is whether the selection,
coordination, or arrangement of preexisting materials must relate to
the section 102 categories of copyrightable subject matter.
In Feist, Rural Telephone's alphabetical directory was found
deficient due to a lack of originality, i.e.,
[[Page 37606]]
of sufficient creativity. Had the items contained in the directory
(names, addresses and telephone numbers) been selected, coordinated, or
arranged in a sufficiently original manner, there is no question that
the resulting compilation would have fit comfortably within the
category of literary works--the first category of copyrightable
authorship recognized by Congress in section 102. But what if an
original selection, coordination, or arrangement of preexisting
material did not fall within a category of section 102 authorship? For
instance, is a selection and arrangement of a series of physical
movements copyrightable, if the resulting work as a whole does not fit
within the categories of pantomime and choreographic works or dramatic
works, or any other category?
Although the Feist decision did not address this question, the
Copyright Office concludes that the statute and relevant legislative
history require that to be registrable, a compilation must fall within
one or more of the categories of authorship listed in section 102. In
other words, if a selection and arrangement of elements does not result
in a compilation that is subject matter within one of the categories
identified in section 102(a), the Copyright Office will refuse
registration.
The Office arrives at this conclusion in accordance with the
instruction of the Supreme Court in Feist: ``the established principle
that a court should give effect, if possible, to every clause and word
of a statute,'' citing Moskal v. United States, 498 U.S. 103, 109-110
(1990). Applying this principle, the Office finds that in addition to
the statutory definition of ``compilation'' in section 101, Congress
also provided clarification about the copyrightable authorship in
compilations in section 103(a) of the Copyright Act:
The subject matter of copyright as specified by section 102
includes compilations and derivative works, but protection for a
work employing preexisting material in which copyright subsists does
not extend to any part of the work in which such material has been
used unlawfully.
17 U.S.C. 103(a). (emphasis added).
Section 103 makes it clear that compilation authorship is a subset
of the section 102(a) categories, not a separate and distinct category.
Section 103 and the definition of ``compilation'' in Section 101 also
mark a departure from the treatment of compilations under the 1909 Act,
which listed composite works and compilations as falling within the
class of ``books.'' The 1976 Act significantly broadened the scope of
compilation authorship to include certain selection, coordination, or
arrangement that results in a work of authorship. But that expansion
also makes it clear that not every selection, coordination, or
arrangement of material is copyrightable. Only selection, coordination,
or arrangement that falls within section 102 authorship is
copyrightable, i.e., is selected, coordinated, or arranged in such a
way that the resulting work as a whole constitutes an original work of
authorship. Moreover, section 103 provides that compilations fall
within ``[t]he subject matter of copyright as specified by section
102,'' and the legislative history of the 1976 Act confirms what this
means: ``Section 103 complements section 102: A compilation or
derivative work is copyrightable if it represents an `original work of
authorship' and falls within one or more of the categories listed in
section 102.'' H.R. Rep. 94-1476 at 57 (1976) (emphasis added).
This requirement indicates that compilation authorship is limited
not only by the tripartite structure of the statutory definition of
``compilation,'' but that in addition, a creative selection,
coordination, or arrangement must also result in one or more
congressionally recognized categories of authorship.
Although the statute together with the legislative history warrant
this conclusion, it is far from obvious when the statutory definition
of ``compilation'' is read in isolation. Moreover, other portions of
the legislative history have obscured this interpretation.
The legislative history states that the term ``works of
authorship'' is said to ``include'' the seven categories of authorship
listed in section 102 (now eight with the addition of ``architectural
works''), but that the listing is ``illustrative and not limitative.''
H.R. Rep 94-1476, at 53. If these categories of authorship are merely
illustrative, may courts or the Copyright Office recognize new
categories of copyrightable authorship? Given that Congress chose to
include some categories of authorship in the statute, but not other
categories, did Congress intend to authorize the courts or the
Copyright Office to recognize authorship that Congress did not
expressly include in the statute? For instance, the decision to include
``pantomimes and choreographic works'' as a new category of authorship
that did not exist under the 1909 Act was the subject of much
deliberation, including a commissioned study and hearings. Copyright
Office Study for Congress. Study No. 28, ``Copyright in Choreographic
Works,'' by Borge Varmer; Copyright Law Revision, Part 2, Discussion
and Comments on Report of the Register of Copyrights on the General
Revision of the U.S. Copyright Law, House Comm. on the Judiciary
(February 1963) at 8-9. Similarly, the decision not to include typeface
as copyrightable authorship was a deliberate decision. H.R. Rep 94-
1476, at 55. Could Congress have intended the courts or the Office to
second-guess such decisions, or accept forms of authorship never
considered by Congress?
Again, the answer lies in the legislative history. First, the
legislative history states that ``In using the phrase `original works
of authorship,' rather than `all the writings of an author,' the
committee's purpose was to avoid exhausting the constitutional power of
Congress to legislate in this field, and to eliminate the uncertainties
arising from the latter phrase.'' H.R. Rep 94-1476, at 51. Thus, one
goal of the illustrative nature of the categories was to prevent
foreclosing the congressional creation of new categories:
The history of copyright law has been one of gradual expansion
in the types of works accorded protection, and the subject matter
affected by this expansion has fallen into one of two categories. In
the first, scientific discoveries and technological developments
have made possible new forms of creative expression that never
existed before. In some of these cases the new expressive forms--
electronic music, filmstrips, and computer programs, for example--
could be regarded as an extension of copyrightable subject matter
Congress had already intended to protect, and were thus considered
copyrightable from the outset without the need of new legislation.
In other cases, such as photographs, sound recordings, and motion
pictures, statutory enactment was deemed necessary to give them full
recognition as copyrightable works.
Authors are continually finding new ways of expressing
themselves, but it is impossible to foresee the forms that these new
expressive methods will take. The bill does not intend either to
freeze the scope of copyrightable technology or to allow unlimited
expansion into areas completely outside the present congressional
intent. Section 102 implies neither that that subject matter is
unlimited nor that new forms of expression within that general area
of subject matter would necessarily be unprotected.
The historic expansion of copyright has also applied to forms of
expression which, although in existence for generations or
centuries, have only gradually come to be recognized as creative and
worthy of protection. The first copyright statute in this country,
enacted in 1790, designated only ``maps, charts, and books''; major
forms of expression such as music, drama, and works of art achieved
specific statutory recognition only in later enactments. Although
the coverage of the present statute is very broad, and would be
broadened further by explicit recognition of all forms of
choreography,
[[Page 37607]]
there are unquestionably other areas of existing subject matter that
this bill does not propose to protect but that future Congresses may
want to.
Id. (emphasis added.)
This passage suggests that Congress intended the statute to be
flexible as to the scope of established categories, but also that
Congress also intended to retain control of the designation of entirely
new categories of authorship. The legislative history goes on to state
that the illustrative nature of the section 102 categories of
authorship was intended to provide ``sufficient flexibility to free the
courts from rigid or outmoded concepts of the scope of particular
categories.'' Id. at 53 (emphasis added). The flexibility granted to
the courts is limited to the scope of the categories designated by
Congress in section 102(a). Congress did not delegate authority to the
courts to create new categories of authorship. Congress reserved this
option to itself.
If the federal courts do not have authority to establish new
categories of subject matter, it necessarily follows that the Copyright
Office also has no such authority in the absence of any clear
delegation of authority to the Register of Copyrights.
Interpreting the Copyright Act as a whole, the Copyright Office
issues this policy statement to announce that unless a compilation of
materials results a work of authorship that falls within one or more of
the eight categories of authorship listed in section 102(a) of title
17, the Office will refuse registration in such a claim.
Thus, the Office will not register a work in which the claim is in
a ``compilation of ideas,'' or a ``selection and arrangement of
handtools'' or a ``compilation of rocks.'' Neither ideas, handtools,
nor rocks may be protected by copyright (although an expression of an
idea, a drawing of a handtool or a photograph of rock may be
copyrightable).
On the other hand, the Office would register a claim in an original
compilation of the names of the author's 50 favorite restaurants. While
neither a restaurant nor the name of a restaurant may be protected by
copyright, a list of 50 restaurant names may constitute a literary
work--a category of work specified in section 102(a)--based on the
author's original selection and/or arrangement of the author's fifty
favorite restaurants.
An example that has occupied the attention of the Copyright Office
for quite some time involves the copyrightability of the selection and
arrangement of preexisting exercises, such as yoga poses. Interpreting
the statutory definition of ``compilation'' in isolation could lead to
the conclusion that a sufficiently creative selection, coordination or
arrangement of public domain yoga poses is copyrightable as a
compilation of such poses or exercises. However, under the policy
stated herein, a claim in a compilation of exercises or the selection
and arrangement of yoga poses will be refused registration. Exercise is
not a category of authorship in section 102 and thus a compilation of
exercises would not be copyrightable subject matter. The Copyright
Office would entertain a claim in the selection, coordination or
arrangement of, for instance, photographs or drawings of exercises, but
such compilation authorship would not extend to the selection,
coordination or arrangement of the exercises themselves that are
depicted in the photographs or drawings. Rather such a claim would be
limited to selection, coordination, or arrangement of the photographs
or drawings that fall within the congressionally-recognized category of
authorship of pictorial, graphic and sculptural works.
As another example, Congress has stated that the subject matter of
choreography does not include ``social dance steps and simple
routines.'' H.R. Rep. 94-1476 at 54 (1976). A compilation of simple
routines, social dances, or even exercises would not be registrable
unless it results in a category of copyrightable authorship. A mere
compilation of physical movements does not rise to the level of
choreographic authorship unless it contains sufficient attributes of a
work of choreography. And although a choreographic work, such as a
ballet or abstract modern dance, may incorporate simple routines,
social dances, or even exercise routines as elements of the overall
work, the mere selection and arrangement of physical movements does not
in itself support a claim of choreographic authorship.
A claim in a choreographic work must contain at least a minimum
amount of original choreographic authorship. Choreographic authorship
is considered, for copyright purposes, to be the composition and
arrangement of a related series of dance movements and patterns
organized into an integrated, coherent, and expressive whole.
Simple dance routines do not represent enough original
choreographic authorship to be copyrightable. Id. Moreover, the
selection, coordination or arrangement of dance steps does not
transform a compilation of dance steps into a choreographic work unless
the resulting work amounts to an integrated and coherent compositional
whole. The Copyright Office takes the position that a selection,
coordination, or arrangement of functional physical movements such as
sports movements, exercises, and other ordinary motor activities alone
do not represent the type of authorship intended to be protected under
the copyright law as a choreographic work.
In addition to the requirement that a compilation result in a
section 102(a) category of authorship, the Copyright Office finds that
section 102(b) precludes certain compilations that amount to an idea,
procedure, process, system, method of operation, concept, principle or
discovery, regardless of the form in which it is described, explained,
illustrated, or embodied in such work. In the view of the Copyright
Office, a selection, coordination, or arrangement of exercise
movements, such as a compilation of yoga poses, may be precluded from
registration as a functional system or process in cases where the
particular movements and the order in which they are to be performed
are said to result in improvements in one's health or physical or
mental condition. See, e.g, Open Source Yoga Unity v. Choudhury, 2005
WL 756558, *4, 74 U.S.P.Q.2d 1434 (N.D. Cal. 2005) (``Here, Choudhury
claims that he arranged the asanas in a manner that was both
aesthetically pleasing and in a way that he believes is best designed
to improve the practitioner's health.'').\1\ While such a functional
system or process may be aesthetically appealing, it is nevertheless
uncopyrightable subject matter. A film or description of such an
exercise routine or simple dance routine may be copyrightable, as may a
compilation of photographs of such movements. However, such a copyright
will not extend to the movements themselves, either individually or in
combination, but only to the expressive description, depiction, or
illustration of the routine that falls within a section 102(a) category
of authorship.
---------------------------------------------------------------------------
\1\ The court in Open Source Yoga Unity did not address section
102(b). See also the discussion of Open Source Yoga Unity below.
---------------------------------------------------------------------------
The relationship between the definition of compilations in section
101 and the categories of authorship in section 102(a) has been
overlooked even by the Copyright Office in the past. The Office has
issued registration certificates that included ``nature of authorship''
statements such as ``compilations of exercises'' or ``selection and
arrangement of exercises.'' In retrospect, and in light of the Office's
closer analysis of legislative intent, the
[[Page 37608]]
Copyright Office finds that such registrations were issued in error.
The Office recognizes that in one unreported decision, a district
court concluded, albeit with misgivings, that there were triable issues
of fact whether a sufficient number of individual yoga asanas were
arranged in a sufficiently creative manner to warrant copyright
protection. See Open Source Yoga Unity, discussed above. However, that
court did not consider whether section 102(a) or (b) would bar a
copyright claim in such a compilation.
The Copyright Office concludes that the section 102(a) categories
of copyrightable subject matter not only establish what is
copyrightable, but also necessarily serve to limit copyrightable
subject matter as well. Accordingly, when a compilation does not result
in one or more congressionally-established categories of authorship,
claims in compilation authorship will be refused.
Dated: June 18, 2012.
Maria A. Pallante,
Register of Copyrights.
[FR Doc. 2012-15235 Filed 6-21-12; 8:45 am]
BILLING CODE 1410-30-P