Utilitarian Information Works - Is Originality the Proper Lens?
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 UIW. This Article examines the cause for the uneasy relationship between UIW and the concept of originality. Part I discusses the role of information and UIW 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 United States, 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 UIW and the concept of originality as the sole standard for evaluating copyright protectability. While originality encourages subjective diversification of creation, the functional nature of UIW constrains expression by requiring uniformity and conformity. Evaluating copyrightability of UIW through the lens of originality alone may lead to results that adversely impact the flow of information required for innovation. Part IV concludes with possible alternative approaches that would avoid jeopardizing the free flow of information.