Are Facts Subject to Copyright? In the U.S.? In the U.K.?

I received a very interesting comment to a recent post in which I made the statement that facts are not copyright protected. The commentator cited the following law from the U.K.

The 1997 legislation on Database Right states-
http://www.legislation.gov.uk/uksi/1997/3032/contents/made
“Acts infringing database right
16. (1) Subject to the provisions of this Part, a person infringes database right in a database if, without the consent of the owner of the right, he extracts or re-utilises all or a substantial part of the contents of the database.
(2) For the purposes of this Part, the repeated and systematic extraction or re-utilisation of insubstantial parts of the contents of a database may amount to the extraction or re-utilisation of a substantial part of those contents.”
As you can see from the above even repeated use of insubstantial parts of a database could constitute breach of database right which is a form of breach of copyright.

And made the comment that therefore facts were, in fact, subject to copyright in the U.K. as was "work product" by reference to the phrase "sweat of brow." The full citation to the legislation referred to is the Copyright and Rights in Databases Regulations 1997 (the "Regulations"),

As with any such legislation, it is important to look to both the definitions contained in the legislation, if there are any, and any subsequent court decisions based on litigation over the provisions of the law. In order to fully answer these questions, it is first necessary to look at the law itself and then do some extensive research on subsequent litigation. In this case, the litigation search would have to extend to the entire European Union for the reason that the decisions of courts outside of the U.K. could have an impact on the interpretation of the law in the U.K. itself. You might note that this particular U.K. statute (law) is based on the Agreement on the European Economic Area signed at Oporto on 2nd May 1992, as adjusted by the Protocol signed at Brussels on 17th March 1993. In fully addressing this issue it would be necessary to review the EEA Agreement and any court decisions made subsequent to its implementation.

Considering the issue at hand, I would phrase one of the questions to be resolved as whether or not a genealogical family tree consisting of the names and pertinent data of a researcher's ancestors would be considered a "database" pursuant to the statute and if so, would a copy of this information by another family member, who was also a descendant of the same ancestors, constitute a violation of any rights conferred by the statute? Another question would follow as to whether or not the individual entries in the compilation of names etc. would be protected. I would also assume that the "family tree" in question was created by entering the names into a program of some kind that neither originated with, nor was organized by, nor created by the researcher.

The ultimate question to be addresses could be formulated as follow:

Assuming that the individual facts compiled in the family tree are equally available to any family member who is a descendant of the people in the family tree, does one particular family member have rights superior to all those other family members, merely by virtue of his or her compilation of source information that is equally available to all?

Let's see if the U.K. or E.U. law gives any guidance in answering any of these questions. First, I would refer you to a very good discussion of the topic of this particular statute in a post entitled, "Database Rights, the basics." However, I will refer directly to the copy of the statute cited above. It should be noted that the present statute is intended to modify and supplement the U.K. Copyright, Designs and Patents Act of 1988.

I will forego citing the entire statute here in this blog post. But here is the provision defining a database:

“Databases
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.”.

Now, this particular definition is very vague and broad. I can think of dozens of ways that this provision could be challenged in a court case. Now let's consider a further provision of the statute:

12 (2) The making of a copy of a database available for use, on terms that it will or may be returned, otherwise than for direct or indirect economic or commercial advantage, through an establishment which is accessible to the public shall not be taken for the purposes of this Part to constitute extraction or reutilisation of the contents of the database.

Of course we can never know the way this particular provision will be construed until there is a court case or series of court cases. Unfortunately, as far as I can tell, the statute itself does not mention "facts" as such. It appears to me that the statute is primarily aimed at databases that are constructed from originally created information such as a list of employees or some such. Without a further clarification of the provision contained in Section 12 (2) cited above, it appears to me that if you make the database "accessible to the public" and the copy is not made for economic gain, then the "copy" is not a violation of the statute. If this is correct, then the statute, by its own terms, does not apply to a genealogical database made available online to the "public."

I suggest that if someone feels so strongly that their particular family tree on Ancestry.com, FamilySearch.org, MyHeritage.com, findmypast.com or some other database program is covered by this particular copyright provision, I would suggest that it would be necessary for those who care, to take the matter to court so the rest of us can benefit from the court's ruling. However, I think there are some really good arguments that the statute would be construed in a way that it would not apply to historical facts generally available to any researcher even if those facts were arranged in a family tree.

The post cited above refers to one E.U. case that has addressed this particular statute. The case is The British Horseracing Board Ltd and Others v William Hill Organization Ltd. But I will have to talk about that case in another post.

One last observation, online family trees such as those maintained on FamilySearch.org, Geni.com and WeRelate.org, are clearly outside of the statute's provisions simply by nature of the fact that they are not "collections of independent works, data or other materials" as used by the statute. I would point any doubters to the "Terms of Use" of each of these and other similar online programs. For example, the Terms of Use of FamilySearch.org contain the following statements:

By using this site, you agree to all of the terms and conditions set forth herein ("Agreement"). If you disagree with any of the terms or conditions, do not use this site. We reserve the right to change this Agreement at any time, so please check for changes to this Agreement each time you use this site. Your continued use of the site following the posting of changes to this Agreement means that you accept those changes. 

This site, which is dedicated to family history and genealogical research, is owned and operated by FamilySearch International (hereinafter "we", "us", or a similar term), a nonprofit organization that is affiliated with The Church of Jesus Christ of Latter-day Saints ("Church").

It would be strange if the U.K. statute, which reserves rights to the originator of a database would ignore the very restrictions imposed by such an originator. The Terms of Use go on to state:

In exchange for your use of this site and/or our storage of any data you submit, you hereby grant us an unrestricted, fully paid-up, royalty-free, worldwide, and perpetual license to use any and all information, content, and other materials (collectively, "Contributed Data") that you submit or otherwise provide to this site (including, without limitation, genealogical data and discussions and data relating to deceased persons) for any and all purposes, in any and all manners, and in any and all forms of media that we, in our sole discretion, deem appropriate for the furtherance of our mission to promote family history and genealogical research. As part of this license, you give us permission to copy, publicly display, transmit, broadcast, and otherwise distribute your Contributed Data throughout the world, by any means we deem appropriate (electronic or otherwise, including the Internet). You also understand and agree that as part of this license, we have the right to create derivative works from your Contributed Data by combining all or a portion of it with that of other contributors or by otherwise modifying your Contributed Data.

In other words, notwithstanding any statutes preserving the rights of any database creators, those same creators can provide access to their "owned" database in any fashion they very well please. Again, if you feel strongly that you own your pedigree, then don't put it online, but don't try to disparage or discourage those in your own family who choose to share their genealogical information with others.