Miriam Bitton


The debate over databases protection has failed to identify and discuss some of its most basic and preliminary assumptions, accepting instead many of the historical aspects involved as given. This Article therefore seeks to challenge these underlying assumptions by providing a fresh look at the historical dimension of the debate. One common argument regarding database protection is that the U.S. Supreme Court decision in Feist v. Rural Publications Inc. brought about a dramatic change in the legal landscape, displacing the then-accepted "sweat of the brow" rationale for protecting rights in databases. This Article's historical analysis therefore thoroughly examines the treatment of works of facts in general and compilations in particular and reveals the very complex and rich legal landscape that preceded Feist. For one thing, it shows that the law's prevailing approach has long been to support unfettered access to facts and other materials considered indispensable for academic and economic progress. This Article's historical analysis also demonstrates that the law's treatment of databases has not, in fact, relied solely on the "sweat of the brow" doctrine, but rather on a much more complicated spectrum of legal analysis. Indeed, throughout U.S. copyright history--from the early eighteenth and nineteenth centuries through the days of the Copyright Act of 1909 and the 1976 Copyright Act until the Feist decision--judicial justifications for copyright protection have swung back and forth between investment of labor on the one hand and creativity on the other. In particular, this Article's historical analysis shows that, contrary to popular thought, the "sweat of the brow" doctrine had been in constant decline under the 1976 Copyright Act even before the Court finally repudiated it in Feist.