Prior to the Feist decision, the question of what constituted the requisite
originality for copyright protection in a compilation of facts proved
troublesome for the courts. 29 At issue was whether industrious gathering and
listing of factual data was sufficient to qualify the work as original, or whether
some additional element of authorship or judgment in the selection and
arrangement of the individual units in the compilation was necessary.
The issue can be stated in more precise factual and doctrinal terms. Even
before Feist, it was a well-established principle in copyright law that there can
be no copyright in a fact or in facts per se. 30 The rationale for this doctrine is
that facts are not created or originated by the author of any work which
embodies the facts; additionally, a larger public policy concern exists that
copyright protection is not intended to restrict the public's use of facts or
remove them from the public domain.3 1 Although facts in and of themselves
are in the public domain and not copyrightable, courts have traditionally
recognized copyright in many works which compile factual data,3 2 and the
current Copyright Act expressly recognizes copyright in compilations. 33 If
facts are not copyrightable, why are collections of facts copyrightable?