The Transformation of Originality in the Progressive-Era Debate over Copyright in News

In the 1991 case of Feist Publications, Inc. v. Rural Telephone Service Co., Inc., the Supreme Court held unanimously that only those aspects of works which exhibited a "modicum of creativity" could be protected by copyright, and hence that factual matter was not copyrightable. Feist confirmed and expanded on the Court's statements in the 1918 case of International News Service v. Associated Press that news was not copyrightable apart from its literary form. Yet for the first three-quarters of the nineteenth century, the notion that copyright incorporated an originality requirement which excluded factual matter from protection was unknown to Anglo-American law. Courts routinely found infringement of fact-based works, such as maps, charts, road-books, directories, and calendars, on the basis of the copying of their factual content, and concluded that the industry of plaintiffs in gathering and presenting facts should be protected under copyright law. What caused the transformation in the doctrine of originality between the Civil War and World War I? This article argues that the rise of creativity-based originality in copyright law has strong ties to a previously little-examined episode in copyright history: the debate over legal protection for news in the last decades of the nineteenth century. Until the 1880s, the American news industry remained in a pre-copyright era, and played no part in copyright discourse. Newspaper editors followed a widespread custom of freely copying text from other newspapers. That custom was acknowledged and encouraged by a massive government subsidy in the form of free postage for newspaper copies that were being exchanged between editors. Newspaper owners never registered their papers before publication, and thus forsook copyright protection for them. In the middle decades of 1800s, however, technological changes, foremost among them the introduction of the telegraph, radically changed the structure of the news industry. The telegraph provided newspapers with an opportunity to invest in more timely news; yet together with improvements in typesetting, printing, and transportation technology, it also created an appropriability problem. It shrank the lead-time advantage that newspapers traditionally had relied upon to realize the value of their investment in news, and also exposed them to competition from which they had previously been geographically isolated. At the same time, the new communications technologies led to the emergence of companies and large associations that dominated markets, often with the aid of anticompetitive practices. Prominent among these were the news industry organizations of the Associated Press and the Western Union. Within this context, the Associated Press, Western Union and others began in the 1880s to press for legal protection of news reports, in both legislative and judicial arenas. Opposition to those efforts led to the first prominent articulations of the notion that facts are not created by authors, and are therefore not copyrightable subject matter. Paradoxically, that notion was then reinforced by proponents of legal protection for news, when they resolved to seek that protection outside of statutory copyright, in common law misappropriation, and made the tactical decision to argue that news was not copyrightable in order to avoid copyright preemption of their common law claims. An earlier, shorter version of this article will appear in a collection of essays published by Edward Elgar Publishing, Inc.