Some people eat, sleep and chew gum, I do genealogy and write...

Sunday, September 13, 2015

Comments on a Copyright Casualty -- Part Two

This is a continuation of my comments about a post written by my friend, Tony Proctor entitled, "A Copyright Casualty." Part One of my comments were as follows:

To summarize from my first post, Tony's ancestor, William Ashbee, was involved in one of the early copyright disputes involving directories. This is an area of the law that particularly affects genealogists and their work. Just a note, Tony's assessment of the judgment as longwinded simply indicates that he has not read very many legal opinions. There are decisions that run into dozens, even hundreds of pages.

I suggest that you read the second installment of Tony's post as linked above. It is interesting reading and I will not repeat what he has said.

It must be noted that the currently in force law in England is very different than the case law in the United States with regard to databases. The directory in question is undoubtedly the predecessor of the present day computer database. This is due to the passage of The Copyright and Rights in Databases Regulations 1997. Here is the definition of a database according to the 1997 Act:

Meaning of “database”

6.  After section 3 insert—


3A.(1) In this Part “database” means a collection of independent works, data or other materials which—

(a)are arranged in a systematic or methodical way, and

(b)are individually accessible by electronic or other means.

(2) For the purposes of this Part a literary work consisting of a database is original if, and only if, by reason of the selection or arrangement of the contents of the database the database constitutes the author’s own intellectual creation..
What happened to Tony's ancestor Ashbee was truly tragic, but at the same time predictable. The judge used the same logic in deciding the case against Ashbee as is expressed in the 1997 statute. In the U.K. a similar case would be similarly decided today. 

I certainly agree with Tony's analysis of the reasoning and logic behind these decisions. Copyright law then and now bears little resemblance to either logic or reasoning. He does note the differences between the U.S. law and the statutory provision in the U.K. These differences mean, in my opinion, that the same case would necessarily be decided differently in the U.S. than it would be in the U.K. As noted, in part, in Tony's analysis, in the U.K. the protection of the law, both in the old Ashbee case and as it would be under the newer statute, would turn on the issue of whether the originator of the database (i.e. directory in the Ashbee case) had invested a substantial effort in obtaining, verifying and presenting the contents. The U.S. law seems to totally disregard this type of evaluation. 

As raised by Tony, is there an issue as to whether or not the creation of a "family tree" is protected either in the U.K. or in the United States? I have analyzed this particular issue several times in the past. Superficially, it would seem that an argument could be made in the U.K. However, I am of the opinion that there would be no basis for a claim in the United States. I would not give a client much hope in the U.K. but I would be hypothetically willing to take the case in the U.S. 

My opinion is that there is nothing original about a family tree. A compilation of historical names, dates and places is not an original work. It is possible, as I have observed before, that portions of a compiled genealogy, that portion that is original, creative work, might be covered by copyright in the United States. But a pedigree, without substantial commentary, is nothing more or less than the same type of information that is in a directory. Hence the differences between the two countries' laws and the possible outcome of a hypothetical lawsuit. 


  1. Thanks for lending your knowledge and expertise here, James. What I, as a layman, do not really understand is why Europe's "sweat of the brow" doctrine is applied differently for databases and for directories. From what I've read, the database-rights are distinct from copyright, and more of a physical property right than an intellectual one. I do not see the distinction, though, and when a directory is served by a database then it all becomes very murky. It's almost as though there's a problem waiting to explode, here, regarding the application of that doctrine.

    I think I agree with the US decision to not uphold the "sweat of the brow" as part of copyright law, but then I do think that it needs to be addressed from the distinct perspective of effort-and-expense rather than creative-merit.

    1. Copyright law in both the U.S. and the U.K. has expanded to the point of inconsistency and in some cases ridiculousness. One can only wonder whose rights the law is trying to protect when copyright protection goes on for over 100 years. Also, there are even more inconsistencies in the U.S. law.

  2. Database right is indeed distinct from copyright. It is a so-called sui generis intellectual property right. The scope of copyright protection for databases was drastically reduced by the regulations that introduced database right. However database right is much more restricting in what it allows non-rights holders to do and is much nearer to protection for mere sweat of the brow work. In turn however its duration is much, much shorter. For a database that is created and then left unchanged it is 15 years from date of creation.

    As for a family tree being subject to database right, I think that would not be possible for the mere arrangement of the names in a tree. However start to attach sources to the tree and things change entirely. Sources being attached implies an intellectual process and judgement being used to assemble the database, so a family tree with attached sources would qualify for the protections of database right.

    1. My conclusion exactly, even though I might not have said it as well as you have. Thanks.