Dear Jo, et. al.,

Let me respond from a U.S. perspective to keep the discussion bounded in my response. I quote below from an article that Jim Campbell and I have recently submitted to the CODATA Journal. We argue that you can eliminate the need to address the copyrightability of factual compilations on a case by case basis by simply always licensing your data compilations to the public domain or commons whether a court would ultimately find them copyrightable or not. The poem “Fleas” or “Lines on the Antiquity of Microbes” is less than three words long yet was completely protected by copyright law until it entered the public domain. We argue that courts will support similar full protection in the selection, coordination and arrangement of even a very few data elements.

Quote from an upcoming article:

“A simple compilation of facts alone, absent originality in selection or arrangement, does not merit copyright protection in the U.S. (or most other countries). There is, Justice O’Connor pointed out, a clear difference between “discovery” and “authorship.” A census taker, for example, who records how many people live in a building is simply discovering and recording a fact – there is no originality hence no protectable authorship involved. The only source of originality, from a copyright perspective, lies in the way that those facts are creatively selected or arranged.

But where is the line that separates the absence of originality from the required level of even a “slight amount” of creativity that will trigger copyright protection? A commons of scientific and technical data infrastructure cannot know. It must leave the choice of whether to assert copyright to the contributor and should offer the contributor a limited set of options for making his or her work available if asserting copyright. Further, if reasonable people might disagree as to whether a slight amount of creativity might exist in the selection, coordination or arrangement of data in a dataset, the need to resolve the question is eliminated by creators conveying to the world any rights they may have in the dataset through a public domain or open access license (e.g. creative commons licenses).”

One can distinguish the selection, coordination and arrangement of data in a database from that of data in a data file but ultimately we argue that our approach resolves the uncertainty. When in doubt, license the scientific and technical data to the public domain … or if you really want to retain attribution, to the commons.

P.S. The poem is “Adam had’em.”