copyright intellectual-property medical
Can information about a drug - trade name, interactions, etc. - be copyright protected?
<p>Can information about a drug, like its trade name, interactions, pharmacokinetics, etc., be copyright protected, or is the information free for use in a commercial sense?</p>

<p>The information itself is not copyrighted.</p>

<ul>
<li>The fact that a drug is an "antagonist platelet aggregation inhibitor" is not copyrighted.</li>
<li>The fact that a drug is indicated for "reducing the risk of thrombotic stroke in patients who have experienced stroke precursors or who have had a completed thrombotic stroke" is not copyrighted.</li>
</ul>

<p>The label author might make certain choices about how to express those facts, though. "[C]hoices 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" to trigger copyright protection. <a href="https://supreme.justia.com/cases/federal/us/499/340/case.html" rel="nofollow noreferrer">Feist Pubs., Inc. v. Rural Tel. Svc. Co., Inc.</a>.</p>

<p>The FDA has created regulations concerning the selection and arrangement of facts in the context of prescription drug labeling. (<a href="http://www.fda.gov/downloads/Training/ForHealthProfessionals/UCM090796.pdf" rel="nofollow noreferrer">An Introduction to the
Improved FDA Prescription
Drug Labeling</a>, <a href="https://www.accessdata.fda.gov/scripts/cdrh/cfdocs/cfCFR/CFRSearch.cfm?CFRPart=201" rel="nofollow noreferrer">21 CFR Part 201</a>, <a href="http://www.fda.gov/OHRMS/DOCKETS/98fr/06-545.pdf" rel="nofollow noreferrer">Consolidated Final Rule and Changes</a>)</p>

<p>Thus in the context of prescription drug labeling, the selection and arrangement of facts are not "made independently by the compiler".</p>

<p>The only things this leaves for copyright protection are:</p>

<ul>
<li>literal word-for-word copying of phrases where there are suitable alternative ways of expressing the same fact, or</li>
<li>other expression not regulated by the FDA.</li>
</ul>

<p>And, if a certain mode of expressing a particular fact has become industry standard (even if there are alternatives), the <em>scènes à faire</em> doctrine either precludes copyrightability or is a defense to infringement, depending on your district.</p>
