Utilitarian information works--is originality the proper lens?

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ABSTRACT INTRODUCTION PART I A. Information, Utilitarian Information Works, and the Knowledge-Based Economy B. The Role of Information Works in the Knowledge-Based Economy C. The Critical Need for Information D. Possible Approaches to Re-Examining the Relationship between Copyright and Utilitarian Information Works PART II A. Copyright Protection of UIW 1. Standards for Protection Applied to UIW a. Standards in the United States b. Standards in Germany c. Limitations on Protectability Applicable to Functional Works d. Limitations on Protection in the United States i. The Idea-Expression Distinction ii. Exclusion of Ideas, Procedures, Processes, Systems, and Methods of Operation iii. The Merger Doctrine e. Limitations on Protectability in Germany PART III A. Copyright Law and Functionality B. The Tension between Originality and Functionality 1. Constraints on Expression in UIW a. Inherent Constraints on Expression i. The "Most Effective Expression" Principle b. External Constraints on Expression 2. Originality in Selection and Arrangement a. Selection b. Arrangement 3. Originality in Judgment and Expertise C. Methodology--Use of Illusory Hypotheses as Evidence of Originality D. Ramifications of the Use of Faulty Methodology E. Authorship, Innovation, and Creativity PART IV CONCLUSION INTRODUCTION

We live in an information society. Many of the most valuable assets in today's economy come in the form of information products. It has become the practice to claim copyright protection for virtually every piece of writing or its electronic equivalent, created by knowledge professionals--from the iPod version of train schedules (1) to instruction manuals for use of motorized saws (2) to spare parts numbering systems. (3) As a result, copyright law may be called upon to operate as gatekeeper to the very building block of our society--information.

This Article examines the tension between the mechanism by which copyright protection is evaluated and the utilitarian nature of works that serve the information society. It emphasizes the fact that copyright law encourages diversification through individuality, origin a I it v. and deviation from the routine, while the functional nature of utilitarian works dictates uniformity and conformity, rendering the individuality of authorial input irrelevant.

It is posited that evaluation of copyrightability through the lens of originality cannot capture the utilitarian functional nature of certain information works, even though utility is their raison d'etre. Originality further ignores the broader economic impact of protectability, which in a knowledge-based economy (KBE) is of critical importance. As a result, the use of originality as the sole standard for determining protectability risks obstructing the flow of information necessary for innovation, causes waste of resources, and adversely impacts competition.

PART I

A. Information, Utilitarian Information Works, and the Knowledge-Based Economy

Utilitarian information works (UIW) are products of human creative expression, whose raison d'etre is performance of concrete, useful functions. (4)

Despite their utilitarian nature, these works fall under the category of "literary" works under the Berne Convention (5) and "writings" under the U.S. Constitution. (6) Scholars and courts have always viewed such works as borderline protectable, placing them, at varying times, either above or below the protectability threshold. Yet, the issue has never received a great deal of attention, possibly because of its limited overall significance. This has now changed. UIW form the core of the KBE. (7) This fact prompts a re-evaluation of the extent to which copyright law should apply to protect UIW.

B. The Role of Information Works in the Knowledge-Based Economy

In the pre-digital age, the economic role of copyrightable works was relatively limited. The technologies available for production and distribution of creative works were costly and cumbersome. (8) Creation of protectable works occurred primarily by way of individual effort. As a result, the risk of an inappropriate decision on protection had only insignificant economic ramifications.

With the advent of digital technology, the potential impact of copyright protection has changed. Information that previously came in printed form was digitized. With reproduction and circulation facilitated by technology, access to information became widespread. This led to the creation of an increasing number of works, (9) which, in turn, fueled the creation of works in even greater numbers. Information works have now become the primary products of the KBE. They are created by trained professionals, or "knowledge workers," (10) who, unlike their counterparts in agricultural or manufacturing economies, produce goods by working with their minds. (11)

New types of expressive works have emerged to meet the specific realities of the KBE. They have come to perform the "work" of the information society; (12) from TV program schedules to DNA sequences to software programs that run the space shuttle, these UIW lie at the core of the KBE and have a direct and powerful influence on society's aggregate economic performance. (13)

C. The Critical Need for Information

The essential ingredient of UIW is information--it operates as the building block of the KBE. (14) Information is recombinant, (15) i.e., it can be used, re-used, processed, combined, and cumulated in a way that gives rise to new, increasingly complex, and useful combinations of information (16) that fulfill practical needs, solve problems, or improve upon existing solutions. Simply stated, information becomes innovation. (17) As a result, information is the principal wealth-generating asset in a KBE. (18)

Information configured in such a way that it is marketable becomes an information product or work. (19) The value of such products in the market derives from their practical utility. In order to achieve their intended utility, information works must be created in accordance with certain pre-established objective rules as to their form, order, structure, precision, and completeness. (20) The creative process is therefore subordinated to the works' functionality.

More than seventy percent of the work force of developed countries currently consists of knowledge workers. (21) They produce information products. In other words, a vast operation of "manufacturing" utilitarian information works is under way. The creative effort supporting the KBE's scientific and technological innovation demands increasingly large quantities of information. The accelerated pace of innovation requires information to be available in its most "fluid" (accessible) form. Restricting the flow of information can have a detrimental impact on economic and technological progress. (22)

Copyright protection, when applied to UIW, has the ability to restrict the flow of information. (23) The extent to which copyright law can effectively function as a gatekeeper of information in a KBE must therefore be re-examined from the perspective of ensuring a predictable and sufficient flow of information. (24)

D. Possible Approaches to Re-Examining the Relationship between Copyright and Utilitarian Information Works

The relationship between UIW and copyright has always been an uneasy one. Copyright encourages subjective diversification, while UIW must reflect reality in an objective manner. (25) At the level of protectability, couching UIW into the evaluation mechanism intended for subjective expression can give rise to distorted results. Other aspects of copyright law are also at odds with the requirements of UIW. Technological protection measures coupled with anti-circumvention laws can block access to information; (26) the broad scope of derivative rights conflicts with the need for incremental improvement of existing works; (27) and collaborative creation is rendered difficult by the absence of parameters for defining the contours of successive creations. (28) All of these aspects tend to inhibit the free flow of information.

This Article is but one step toward a more comprehensive solution for easing the flow of information. It examines the tension between UIW and the mechanism by which copyrightability is evaluated. The analysis will focus on the fact that in UIW, expression is constrained by the works' utilitarian functionality. This Article argues that originality is not a good fit as standard for evaluation of copyrightability of UIW. Originality seeks subjective diversification and deviation from the routine. Expression of UIW, on the other hand, must follow the dictates of uniformity and conformity, and must, accordingly, subordinate to their utilitarian function. Authorial individuality is, for the most part, irrelevant. Originality being the only criterion of protectability, copyright law remains blind to the economic impact of protectability, in particular as to non-creator stakeholders.

The author posits that evaluating copyright protectability through the lens of originality does not capture the functional nature of UIW. Evaluation through this lens may result in obstruction to the flow of information necessary for innovation, in waste of resources and in an adverse impact on competition. While this thesis constitutes a departure from traditional copyright doctrine, changed times and circumstances prompt consideration of new approaches.

Finally, it must be kept in mind that we live in a global world. Legal solutions must have universal applicability across legal systems. In this spirit, this Article examines legal authorities from the United States, a significant representative of copyright law, and from Germany, a significant representative of author's right law, and refers to authorities from other jurisdictions as well.

PART II

A. Copyright Protection of UIW

At present, copyright presumptively covers all materials that are expressed in digital form, regardless of their nature. (29) Yet,...

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