UTILITARIAN INFORMATION WORKS – IS ORIGINALITY THE PROPER LENS?

Dana Beldiman, University of California Hastings College of Law

Abstract

As the information society advances, vastly increased numbers of utilitarian information works (UIW) are being produced. In general, these works are deemed protected by copyright law, even though the philosophical underpinnings of copyright law clash with the attributes of utilitarian information works. This article examines the cause for the uneasy relationship between utilitarian information works and the concept of “originality.”

Part I discusses the role of information and utilitarian information works as one of the core wealth-producing assets of the knowledge-based economy. This economy is characterized by a rapid pace of innovation, which in turn, requires unrestricted access to information. Part II examines copyright law as it relates to protectability of fact-intensive works. In recognition of the global nature of the issue, the law of the U.S., as a representative common law jurisdiction, and the law of Germany, as a representative civil law jurisdiction, are discussed. Relevant authorities from other jurisdictions are mentioned as well. Part III points to the tension between utilitarian information works and the concept of “originality” as the sole standard for evaluating copyright protectability. While originality encourages subjective diversification of creation, the functional nature of utilitarian information works constrains expression by requiring uniformity and conformity. Evaluating copyrightability of utilitarian information works through the lens of originality alone, may lead to results that adversely impact the flow of information required for innovation. The article concludes with possible alternative approaches that would avoid jeopardizing the free flow of information.