copyright intellectual-property publishing
Where are the limits of creative expression in graphical data displays?
<p>In science is is common to show someone else's peer reviewed published graph of data in ones own presentation, in the form &quot;Previously we knew X, see this graph from Y (reference) demonstrating data Z.  I go on to show...&quot;.  As I understand it the graph itself is protected by copyright, not by virtue of the underlying data but on the creative expression in the graph, things like the colours of the lines, the symbols used to mark data points, perhaps the aspect ratio.  I think this use would be covered by fair use, but that is judged on a case by case basis.</p>
<p>If I did not want to rely on fair use, I could presumably take the underlying data (usually provided in the case of scientific publications), put it into my preferred graphing solution and produce my own copy of the graph, with different colours, icons and aspect ratio.  I would then own the copyright on the resulting graphic.  However, sometimes the underlying data is not readily available, but I could produced the exact same product by using say <a href="https://www.gimp.org/" rel="nofollow noreferrer">the gimp</a> to change the colours, icons and aspect ratio.  This seems like it would have the same legal effect, and I would own the copyright in the resulting graphic.</p>
<p>Then I thought could I not do the same for any graphic data display?  For example <a href="https://www.ordnancesurvey.co.uk/" rel="nofollow noreferrer">ordnance survey</a> distribute maps protected by crown copyright.  These are available online via companies such as <a href="https://www.streetmap.co.uk/" rel="nofollow noreferrer">streetmap</a> and <a href="https://www.bing.com/maps/" rel="nofollow noreferrer">bing</a>.  I am fairly sure that technically I could download these maps, extract the data and recreate them changing the creative elements such as colours, icons and rasters but maintaining all the positions.  If this gave me unresticted copyright on the resultant images I could compete for some share of the <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1000790/ordnance-survey-os-limited-annual-report-2020-21-web-optimised.pdf" rel="nofollow noreferrer">£173 million in sales</a> the OS has.  Since no one has done this I assume this is not the case.</p>
<p>Where is the line here?  At which point between the raw data and the distributed expression of that data does creative expression occur?  What rules should be considered when using publicly available data to create visual expressions that are to be distributed.  As far as jurisdiction, I guess in a country with a US extradition treaty is probably what matters.</p>

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<p>I could produced the exact same product by using say the gimp to change the colours, icons and aspect ratio. This seems like it would have the same legal effect, and I would own the copyright in the resulting graphic.</p>
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<p>Absolutely not. While creating a graph from the underlying data is a new work, creating a different graph from the graph is a <a href="https://en.wikipedia.org/wiki/Derivative_work" rel="nofollow noreferrer">derivative work</a> and that is a right exclusive to the original’s copyright holder.</p>
<p>You can’t do it with maps either. Indeed, mapping companies make deliberate errors in their data such as adding streets or geographic features that don’t exist. While the data about real streets and geographic features is a fact and not subject to copyright. “Facts” about fictional things are creative works and are subject to it. So if you reverse engineer Google map’s data and create your own map, you will be in breach of copyright because your map will include the same fictional information. Gotcha!</p>
<p>BTW, paper mapmakers did this too; including Ordinance Survey maps.</p>

<h2>Facts are Not Protected, Expression May Be</h2>
<p>The basic rule of copyright is that facts are not subject to protection by copyright, although expressions of facts may be. For the US this is expressed by <a href="https://www.copyright.gov/title17/92chap1.html#102" rel="nofollow noreferrer">17 USC 102(b)</a> whgich provides that:</p>
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<p>(b) 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.</p>
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<p>The <a href="https://wipolex.wipo.int/en/text/283698" rel="nofollow noreferrer">Berne Copyright Convention</a> provides, in article 2(8):</p>
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<p>(8) The protection of this Convention shall not apply to news of the day or to miscellaneous facts having the character of mere items of press information.</p>
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<h2>Protected Elements</h2>
<p>This means that only the original, expressive aspects of such a graph as is described in the question would be protected, such as the colors used, yjr symbols used, the exact scale of the graph, the aspect ratio, and the words used in legends, captions, and associated test, to the extent that these are original and not the most obvious ways to express bare facts.</p>
<p>Anyone is free to extract the data values and other UNprotected elements  from the graph, and use them to create a new graph, with different choices for any protected elements such as color and symbols. Doing do is not copyright infringement.</p>
<p>The question reads:</p>
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<p>As I understand it the graph itself is protected by copyright, not by virtue of the underlying data but on the creative expression in the graph, things like the colours of the lines, the symbols used to mark data points, perhaps the aspect ratio.</p>
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<p>This is largely correct, but only those expressive elements are protected, the &quot;graph as a whole&quot; is not. More exactly, the elements which are factual data are not protected.</p>
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<p>I am fairly sure that technically I could download these maps, extract the data and recreate them changing the creative elements such as colours, icons and rasters but maintaining all the positions. If this gave me unrestricted copyright on the resultant images I could compete ...</p>
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<p>One could do that, but one would not get &quot;unrestricted copyright on the resultant images&quot; only on the newly added expressive elements. The underlying location data remain unprotected. As the <em>Feist</em> opinion says:</p>
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<p>The mere fact that a work is copyrighted <strong>does not mean that every element of the work may be protected</strong>.</p>
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<h2>Fictional Facts</h2>
<p>So-called &quot;fictional facts&quot;, also kn own as &quot;copyright traps&quot; have been used in the past to <strong>detect</strong> copying, particularly when courts were using a &quot;sweat of the brow&quot; theory to extend protection to collections of raw facts. They never did, nd do not now, convert a collection of facts into a work of fiction, to be protected as such. They do not increase the level of protection given to the work as a whole, and as purported facts, may themselves be copied. Four fictional names were included in the facts copied in the <em>Feist</em> case, but this had no significance in that decision.</p>
<h2>The <em>Feist</em> Decision</h2>
<p><a href="https://www.law.cornell.edu/supremecourt/text/499/340" rel="nofollow noreferrer"><em>Feist Publications, Inc., v. Rural Telephone Service Co.</em>, 499 U.S. 340 (1991)</a> is a key case of the US Supreme Court affirming that copyright protects only <em><strong>original</strong></em> works, or in the case of works based on facts or on preexisting content, only the original elements added by the author, and in co ase the facts themselves. This case firmly rejected the &quot;sweat of the brow&quot; or &quot;industrious collection&quot; theories of copyright, which held that copyright protection is a reward for the &quot;effort&quot; or &quot;skill and labor&quot; used to determine and/or assemble a collection of facts. The <em>Feist</em> opinion stated:</p>
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<p>... The most fundamental axiom of copyright law is that &quot;[n]o author may copyright his ideas or the facts he narrates.&quot; <em>Harper &amp; Row, Publishers, Inc. v. Nation Enterprises</em>, 471 U.S. 539, 556, 105 S.Ct. 2218, 2228, 85 L.Ed.2d 588 (1985).  ...  At the same time, however, it is beyond dispute that compilations of facts are within the subject matter of copyright. Compilations were expressly mentioned in the Copyright Act of 1909, and again in the Copyright Act of 1976.</p>
<p>There is an undeniable tension between these two propositions. Many compilations consist of nothing but raw data i.e., wholly factual information not accompanied by any original written expression. On what basis may one claim a copyright in such a work? Common sense tells us that 100 uncopyrightable facts do not magically change their status when gathered together in one place. ...</p>
<p>...
In The <em>Trade-Mark Cases</em>, the Court addressed the constitutional scope of &quot;writings.&quot; For a particular work to be classified &quot;under the head of writings of authors,&quot; the Court determined, &quot;originality is required.&quot; 100 U.S., at 94. The Court explained that originality requires independent creation plus a modicum of creativity: &quot;[W]hile the word <em>writings</em> may be liberally construed, as it has been, to include original designs for engraving, prints, &amp;c., it is only such as are <em>original</em>, and are founded in the creative powers of the mind. The writings which are to be protected are the <em>fruits of intellectual labor</em>, embodied in the form of books, prints, engravings, and the like.&quot; Ibid. (emphasis in original).</p>
<p>...</p>
<p>The originality requirement articulated in <em>The Trade-Mark Cases</em> and <em>Burrow-Giles</em> remains the touchstone of copyright protection today. See <em>Goldstein v. California</em>, 412 U.S. 546, 561-562, 93 S.Ct. 2303, 2312, 37 L.Ed.2d 163 (1973). It is the very &quot;premise of copyright law.&quot; <em>Miller v. Universal City Studios, Inc.</em>, 650 F.2d 1365, 1368 (CA5 1981). Leading scholars agree on this point. As one pair of commentators succinctly puts it: &quot;The originality requirement is <em>constitutionally mandated</em> for all works.&quot; Patterson &amp; Joyce, <em>Monopolizing the Law: The Scope of Copyright Protection for Law Reports and Statutory Compilations</em>, 36 UCLA L.Rev. 719, 763, n. 155 (1989) (emphasis in original) ...</p>
<p>It is this bedrock principle of copyright that mandates the law's seemingly disparate treatment of facts and factual compilations. &quot;No one may claim originality as to facts.&quot; Id., § 2.11[A], p. 2-157. This is because facts do not owe their origin to an act of authorship. The distinction is one between creation and discovery ... The same is true of all facts—scientific, historical, biographical, and news of the day. &quot;[T]hey may not be copyrighted and are part of the public domain available to every person.&quot; <em>Miller</em>, supra, at 1369.</p>
<p>Factual compilations, on the other hand, may possess the requisite originality. The compilation author typically chooses which facts to include, in what order to place them, and how to arrange the collected data so that they may be used effectively by readers. These choices as to selection and arrangement, so long as they are made independently by the compiler and entail a minimal degree of creativity, are sufficiently original that Congress may protect such compilations through the copyright laws. Nimmer §§ 2.11[D], 3.03; Denicola 523, n. 38. Thus, even a directory that contains absolutely no protectible written expression, only facts, meets the constitutional minimum for copyright protection if it features an original selection or arrangement. See <em>Harper &amp; Row</em>, 471 U.S., at 547, 105 S.Ct., at 2223. Accord, Nimmer § 3.03.</p>
<p>This protection is subject to an important limitation. The mere fact that a work is copyrighted <strong>does not mean that every element of the work may be protected</strong>. Originality remains the <em>sine qua non</em> of copyright; accordingly, <strong>copyright protection may extend only to those components of a work that are original to the author</strong>. Patterson &amp; Joyce 800-802; Ginsburg, Creation and Commercial Value: Copyright Protection of Works of Information, 90 Colum.L.Rev. 1865, 1868, and n. 12 (1990) (hereinafter Ginsburg). Thus, if the compilation author clothes facts with an original collocation of words, he or she may be able to claim a copyright in this written expression. <strong>Others may copy the underlying facts from the publication</strong>, but not the precise words used to present them. ...  No matter how original the format, however, <strong>the facts themselves do not become original</strong> through association. See Patterson &amp; Joyce 776.[<em>Boldface added</em>]</p>
<p>This inevitably means that the copyright in a factual compilation is thin. Notwithstanding a valid copyright, a subsequent compiler remains free to use the facts contained in another's publication to aid in preparing a competing work, so long as the competing work does not feature the same selection and arrangement. As one commentator explains it: &quot;[N]o matter how much original authorship the work displays, the facts and ideas it exposes are free for the taking. . . . [T]he very same facts and ideas may be divorced from the context imposed by the author, and restated or reshuffled by second comers, even if the author was the first to discover the facts or to propose the ideas.&quot; Ginsburg 1868.</p>
<p>It may seem unfair that much of the fruit of the compiler's labor may be used by others without compensation. As Justice Brennan has correctly observed, however, this is not &quot;some unforeseen byproduct of a statutory scheme.&quot; <em>Harper &amp; Row</em>, 471 U.S., at 589, 105 S.Ct., at 2245 (dissenting opinion). It is, rather, &quot;the essence of copyright,&quot; ibid., and a constitutional requirement. <strong>The primary objective of copyright is not to reward the labor of authors</strong>, but &quot;[t]o promote the Progress of Science and useful Arts.&quot; Art. I, § 8, cl. 8. Accord, <em>Twentieth Century Music Corp. v. Aiken</em>, 422 U.S. 151, 156, 95 S.Ct. 2040, 2044, 45 L.Ed.2d 84 (1975). To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. <em>Harper &amp; Row</em>, supra, 471 U.S., at 556-557, 105 S.Ct., at 2228-2229. This principle, known as the idea/expression or fact/expression dichotomy, applies to all works of authorship. As applied to a factual compilation, assuming the absence of original written expression, only the compiler's selection and arrangement may be protected; t<strong>he raw facts may be copied at will</strong>. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art. [<em>Boldface added</em>]</p>
<p>...</p>
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<p>[C]opyright does not prevent subsequent users from copying from a prior author's work those constituent elements that are not original—for example . . . facts, or materials in the public domain—as long as such use does not unfairly appropriate the author's original contributions.&quot;</p>
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<p><em>Harper &amp; Row</em> 471 U.S., at 547-548, 105 S.Ct., at 2223-2224</p>
<p>This, then, resolves the doctrinal tension: Copyright treats facts and factual compilations in a wholly consistent manner. Facts, whether alone or as part of a compilation, are not original and therefore may not be copyrighted. A factual compilation is eligible for copyright if it features an original selection or arrangement of facts, but the copyright is limited to the particular selection or arrangement. In no event may copyright extend to the facts themselves.</p>
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