The Labor of Authors

   A common perception of the law of copyright is that it serves to protect the labors of the the author, especially in the area of factual compilations.  Some court decisions, in fact, misapplied the copyright act of 1909, developing a new judicial theory to justify protection of factual compilations.  This theory, known as "sweat of the brow" or "industrious collection," in effect said that copyright was a reward for the hard work that went into compiling facts.
   The "sweat of the brow" doctrine was seriously flawed in many ways.  The most obvious was the extension of copyright beyond selection and arrangement, which is  the compiler's original contribution, to the facts, themselves.  Under the doctrine, the only defense to infringement is totally independent creation where the the facts in any copyrighted work could not be used by others unless independently discovered or collected.  " 'Sweat of the brow' courts handed out proprietary interests in facts and declared that authors are absolutely precluded from saving time and effort by relying upon the facts contained in prior works.
   "In enacting the Copyright Act of 1976, Congress dropped the reference to 'all the writings of an author' and replaced it with the phrase 'original works of authorship.'"¹  This made the originality requirement explicit, which Congress announced as "merely clarifying existing law."¹
   The 1976 Act further identifies those specific elelments of a work not eligible for copyright protection: "In no case does copyright protection for an original work of authorship extend to any 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."¹  This is "universally" understood to also prohibit any copyright in facts.  This identification of specific elements not eligible for copyright protection was declared by Congress to be a clarification of prior law. 
   "Just as the copyright law does not protect 'industrious collection,' it affords no shelter to the resourceful, efficient, or creative collector.... The protection of copyright must inhere in a creatively original selection of facts to be reported and not in the creative means used to discover those facts."²

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