A list for discussion of library cataloging and authorities issues

R. Richards | 1 Feb 20:06

Re: Copyright in Bib Records

Aaron, thanks for your very interesting comments. I agree that the case for copyright in individual bib
records is weak for the reasons you mention. But here are some additional suggestions for arguments in
favor of such a copyright in individual bib records created by persons other than U.S. federal government
employees.

The statute and cases seem to suggest two avenues by which copyright could attach to an individual bib
record containing noncopyrightable material: under Section 102(a)(1) of the Copyright Act, if the
record “integrates” the noncopyrightable material with copyrightable expression; or as a
compilation under Section 103 of the Copyright Act, through the selection and arrangement of the
noncopyrightable material. More detail on this appears in the last paragraph below.

Aaron’s comments seem to suggest that respecting individual original bib records created by persons
other than federal government employees, the following might be considered factors weighing in favor of
a finding of copyrightability (under Section 102 or 103):

• the creating library did not put the bib record on a publicly available server for free-of-charge,
unrestricted download, which might be viewed as relinquishing copyright or granting a broad implied
license;
• the presence of substantial original prose, such as in field 520 summary notes;
• use of classification numbers or codes not created by U.S. federal government employees (such as DDC or
UDC);
• use of subject headings or subject terms not created by U.S. federal government employees (such as
Sears headings, or genre terms from thesauri not created by LC or NLM).

In addition, for certain types of works combining noncopyrightable and copyrightable material, the
courts recognize what is termed a “thin” copyright, which protects only against copying of the
specific wording and arrangement used in the work, but not against slight variations or derivative
works. See Cont’l Cas. Co. v. Beardsley, 253 F.2d 702 (2d Cir.), cert. denied, 358 U.S. 816 (1958),
http://bulk.resource.org/courts.gov/c/F2/253/253.F2d.702.174.24752_1.html (“[I]n the
fields of insurance and commerce the use of specific language in forms and documents may be so essential to

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R. Richards | 1 Feb 22:48

Re: Copyright in Bib Records

Here are some additional thoughts: 

Whether the (non-U.S. federal government) library that creates an individual bib record put the bib
record on a publicly available server for free-of-charge, unrestricted download, is a factor that goes
to enforceability, not to whether copyright attaches. The next point concerns “selection”
respecting a Section 103 compilation copyright in individual bib records. A Section 103 compilation
copyright appears to arise primarily from originality of selection and arrangement. The fixed
arrangement required by the MARC format (and perhaps also by AACR2) would seem to preclude a finding of
original “arrangement.” That would leave originality of selection. The statute and cases seem not
to preclude a finding of originality of selection even where all of the components selected are
noncopyrightable. The cases seem to say that originality of selection lies primarily in whether the
creator exercised sufficient judgment in selecting the included material. “Selection implies the
exercise of judgment in choosing which facts from a given body of data to include in a compilation.” Key
Publ’ns. Inc. v. Chinatown Today Publ’g Enters., Inc., 945 F.3d 509, 512-13 (2d Cir. 1991),
http://bulk.resource.org/courts.gov/c/F2/945/945.F2d.509.91-7235.1681.html . I think the
research on classification and subject analysis demonstrates the substantial expertise, knowledge,
skill, and judgment required to properly apply sophisticated classification and subject headings
systems such as LC Classification and LCSH. So it seems possible that a court could hold that a non-U.S.
federal government employee, creating an original bib record which has for its sole call number one that
comes from a sophisticated public domain classification system (such as LC or NLM classification) and
has for its sole subject headings those drawn from a sophisticated public domain system (such as LCSH or
MeSH), could exercise sufficient judgment in selecting or formulating that call number and subject
headings, to warrant a finding of original selection, such that a compilation copyright attaches to the
bib record. 

Again, I agree that that may be a weak argument, and that the case for compilation copyright in the WorldCat
database as a whole seems much stronger. 
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 
Robert C. Richards, Jr., J.D.*, M.S.L.I.S., M.A. 
Philadelphia, PA

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