How can "factual" intellectual property be protected?

Question

As noted in this answer:

Facts and information cannot be copyrighted. Just because a work is copyrighted, doesn't mean every part of that work is copyrighted, and factual information conveyed by the work is a part which is not subject to copyright. Copyright on a collection of facts is limited to the selection and arrangement of those facts, and only if that selection and arrangement has some bare minimum amount of originality. See Feist v. Rural, 499 U.S. 340.

What intellectual-property protection is available under the law for scenarios like the following?

1. Half of a published book consists of factual descriptions of bullets, including proprietary measurements of ballistic coefficients (which are supposed to be an immutable "fact" about the bullet). By publishing those data in a copyrighted book are they now in the public domain? Or because they represent a specific estimate/measurement, and not an invariant fact (i.e., a different measurement could produce a slightly different value), are they protected by the copyright?

2. CUSIP numbers are widely used unique identifiers of financial instruments, but they are only available under license. If somebody "leaked" these data to the public would the data then be in the public domain? (I.e., does just one person violating their license in this fashion remove all IP protection for data covered by the license?)

Answer 1

I'm going to focus on one part of your question, because I think it is informative to the entire question:

"By publishing those data in a copyrighted book are they now in the public domain?"

Insofar as copyright is concerned, the "facts" are simply never copyrightable. What is copyrightable is the expression of the fact. So you publish a book and it contains many facts. You retain copyright over how you expressed the facts, meaning the word choice, format of presentation and so on.

The discussion of this point always leads people to ask the following two questions:

1. What if the "facts" are closely related to the way they are expressed? For example, a phonebook contains "facts" about phone numbers. The individual numbers are not subject to copyright. But if the way they were organized was clever (i.e. not merely alphabetical) the presentation may be copyrighted.
2. Doesn't that line get blurred? Why doesn't "the presentation order" count as a "fact?" It does get blurred! And courts use nuanced case law and judgment to figure out which side of the line a given thing is. However, one backstop is that if AN EXPRESSION is so closely related to the IDEA BEING EXPRESSED that the IDEA cannot be otherwise expressed, then then the EXPRESSION is not subject to copyright protection.

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To answer your specific questions:

• The book is subject to copyright. The facts in the book are not. Someone else could publish a book with the same measurements so long as they are expressing the facts with sufficient difference from the original.

• I'm not familiar with CUSIP numbers. However, there are two things to say here.

  (A) it sounds like you are describing a contractual relationship between the people who have the numbers. This is not governed by copyright; it is governed by contract between the parties. If these numbers could be treated as a "trade secret" they might be protected IP in that way. But given that they are likely circulated at least a bit, they don't seem like candidates for "trade secret" protection. To your question, "what is the effect of one person leaking?" If "trade secret" law was doing any "work" here... then yes, the trade secret would be undone once the information was public. But like I said, its likely this is actually all about contracts not intellectual property protection.

  (B) The "facts" of "which number is associated with which instrument" is likely NOT subject to copyright at any time. The specific numbering code COULD BE copyrighted, but in reality is almost certainly TOO CLOSELY tied to the IDEA being expressed to be copyrighted. Could the number be expressed otherwise? If not, then its likely not protected by copyright.

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Big take away here: You seem to be confused about the concept of "facts" getting into the public domain. That's not exactly what copyright is about. Copyright would protect the expression of facts. An expression can become public domain if it is sufficiently old or if the creator designates it as public domain work. But simply "putting something out there" does nothing to alter the copyright status of the thing.

Answer 2

Ditto HarveyBirdMan and I upvoted his answer, but let me take a part of what he said and beat it to death.

As the BirdMan says, facts are not copyrightable, only the words or pictures used to express those facts.

For example, suppose you write a news story describing a campaign speech given by Senator Jones. If another newspaper published that exact same story, word for word, without your permission, they would be guilty of copyright violation. But if another newspaper published a story about Senator Jones giving this speech, and they did not use the same words that you did, if, say, you said, "Senator Jones gave a brilliant and insightful speech about international trade" and they wrote "Senator Jones made some very intelligent remarks about trade with other countries", then they have not violated your copyright. Even if you were the first to publish it, you do not "own" the fact that Senator Jones gave this speech. You own the words you used to describe it.

So in this case, facts about the ballistic behavior of bullets are not copyrightable. The words you use to describe them are. If you select or arrange facts in an original and creative way, that selection or arrangement can be copyrightable. For example, if you put together a collection of your favorite scenes from Shakespeare's plays, your book would be copyrightable. Even though you don't own the individual scenes -- they're long since public domain -- you own the selection and arrangement. So, for example, a chart that you have made listing a variety of types of bullets and some set of ballistic characteristics is probably copyrightable. No one else can copy your chart exactly as is. But if someone took all the numbers off your chart and arranged them in a different way, and left some of your columns off and added a column or two of their own, then you probably could not win a copyright suit against them.

There was a classic case a few years ago where a telephone company sued another telephone company for copying their phone book. The court ruled that a phone book cannot be copyrighted. The key to their ruling was that the individual names and phone numbers are facts and cannot be copyrighted, and the idea of listing everyone in a certain geographical area in alphabetical order is so obvious that that can't be copyrighted either. The judge said that the standards for what is sufficiently creative to warrant copyright protection are low, but they are not non-existent.

• Update a year later *

I saw an upvote and realized that I never directly answered the question.

"How can factual intellectual property be protected?" The answer is, NOT with copyright. Copyright does not protect facts, only the expression of facts.

You can protect factual IP by keeping it secret and then using trade secret laws and non-disclosure agreements. But if you publish the information in a book yourself, I think you'd lose any claim to it being a trade secret.

Depending on the nature of the facts, you may be able to get a patent on the information. If you invent a new process or method, you may be able to patent it. But a table of information about existing products of other companies? I sincerely doubt you could patent that.

I'll gladly yield to an expert in IP law, but I don't think it's possible to protect the information in a table like your example. Think about the implications if you could. Suppose you published a chart listing, say, the weight of each bullet produced by a variety of ammo manufacturers. If you could copyright this, does that mean that the people who actually make the bullets aren't allowed to use the fact that they weigh such-and-such? Surely in their own manufacturing process they are aiming to make them a certain weight. Would the fact that you have published your book mean they are not allowed to weigh their own products any more? Presumably anyone with a sufficiently precise scale could determine the weight of a bullet. Should it be illegal for anyone besides you to weigh a bullet? Should scale manufacturers be required to somehow prevent people from using their scales to weigh bullets? Etc.