Copyright and Facts: Two Centuries of Changing Treatment Under U.S. Law

Professor Robert Brauneis, The George Washington University School of Law (Washington, D.C.), December 2007

In 1992, the US Supreme Court held in Feist Publications v. Rural Telephone Service that the factual content of a nonfiction work is not copyrightable subject matter because facts do not originate with an author, but are rather copied from the world. From a present-day perspective, especially from European eyes, such a decision may be seen as unremarkable. But the Feist decision rejected almost 200 years of US and English precedent under which factual content was sometimes protected. This paper attempts to recapture the changing treatment of factual content over those two centuries. It describes the conditions under which courts protected what we would now think of as factual content, and offers some hypotheses to explain legal change. It also considers what a historical perspective can teach us about our current notions of authorship, originality, and the scope of copyright protection.