A modicum of creativity
after Feist.
Feist decision
Feist history
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In 1991, Feist Publications won a landmark case in
the United States Supreme Court. The court
unanimously agreed that factual material could not
be copyrighted, thus allowing directory publishers
to print white page listings that were copied from
another source. All directory publishers benefited
from this decision. No longer could telephone
companies withhold listing information from their
competitors. This case, Feist Publications, Inc. v.
Rural Tel. Serv. Co., 499 U.S. 340 (1991), has since
been cited in several other copyright cases.
United States Supreme
Court
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When Rural refused to license its white pages listings to Feist
for a directory covering 11 different telephone service areas,
Feist extracted the listings it needed from Rural’s directory
without Rural’s consent. Although Feist altered many of
Rural’s listings, several were identical to listings in Rural’s
white pages. The District Court granted summary judgment to
Rural in its copyright infringement suit, holding that telephone
directories are copyrightable. The Court of Appeals affirmed.
Held:
Rural’s white pages are not entitled to copyright, and
therefore Feist’s use of them does not constitute
infringement.
(Feist, 1991)
Importance of the Feist
decision
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‘The Supreme Court dropped a bomb’.
Register of Copyrights, 1991.
‘Feist is a defining event for copyright in the
information age’ (Goldstein, 1991, p.118).
‘inordinately Delphic even by Supreme Court
standards’ (Strong, 1994, p.39).
‘Like it or not, Feist is the law in the U.S.’
(Resnik, 2003, p.309).
Perspective from information science.
Specific significance of the
decision
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Affirmed originality as a constitutional
requirement.
‘constitutional requirement’ (p.346).
‘the very ‘premise of copyright law.’’
(p.347).
‘The sine qua non of copyright’ (p.345).
Insistence on and depth of requirement.
For compilations, originality replaced
industrious collection or sweat of the brow
as the basis for protection.
Originality as a concept
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What is understood by originality?
‘Original, as the term is used in
copyright, means only that the work
was independently created by the
author … and that it possesses at least
some minimal degree of creativity’
(p.345).
Originality is to be understood by
reference to the concepts it includes.
A modicum of creativity
within originality
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What is the significance of a modicum of creativity
to originality?
‘independently created by the author … and that it
possesses at least some minimal degree of
creativity’ (p.345).
‘… plus …’ (p.346)
‘… and …’ (pp.348, 358).
Independent creation AND a modicum of creativity.
A modicum of creativity is then an essential
component of originality.
Test for originality
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‘Originality requires only that the author make
the selection or arrangement independently …
and that it display some minimal level of
creativity. Presumably, the vast majority of
compilations will pass this test’ (pp.358-359).
A modicum of creativity, as a component of
originality, should be testable.
‘I know it when I see it’ (Jacobellis v. Ohio,
1964, p. 197).
Criterion originality modicum testable.
A modicum of creativity
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Understandings of a modicum of creativity
obtainable from its invocation.
‘at least some / a minimal degree of creativity’
(pp.345, 348, 362).
‘a / the modicum of creativity’ (pp.346, 362).
‘some minimal level of creativity’ (p.358).
‘the minimal creative spark’ (p.363).
All linked to original, statute, or Constitution.
Common referent.
A modicum of creativity
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Complementary meanings.
Creativity as a common constituent.
Modicum and minimal imply the possibility of
quantification of creativity.
Minimal can be understood as least sufficient (‘at least
some’).
Modicum as a small amount.
Degree and level correlate with a certain level of
sophistication.
Spark implies limited duration and a degree of
illumination.
A modicum as including creativity, quantifiable, small
amount, level, illumination.
Conditions for a modicum of
creativity
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Conditions indicated for a modicum of creativity.
‘To be sure, the requisite level of creativity is
extremely low; even a slight amount will suffice.
… some creative spark, ‘no matter how crude,
humble or obvious’ it might be’ (p.345).
Criterion modicum low level.
‘As a constitutional matter, copyright protects
only those constituent elements of a work that
possess more than a de minimis quantum of
creativity’ (p.363).
Criterion modicum more than quantum.
Levels of creativity
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Levels of creativity.
‘require no creativity whatsoever.’ (p.362)
‘end product … devoid of even the slightest trace of
creativity’ (p.362)
‘nothing remotely creative’ (p.363).
Extreme absence of creativity.
‘insufficient creativity’ (p.363).
Insufficient creativity.
Pivotal position, extent, and novelty.
Criterion creativity antithesis to nothing remotely
creative.
Criterion creativity consistent with insufficient creativity.
Creativity
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Creativity and creative contained as words, and, by
implication, concepts, in a modicum of creativity, a
quantum of creativity and in the levels of creativity
distinguished.
Not further directly explicated.
Consistent with ordinary discourse and everyday
practice.
Consciousness and practice.
Dominant instrument of labor in everyday practice.
Criterion creativity ordinary discourse and everyday
practice.
Criteria established
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Criterion derived from originality
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A modicum of creativity should be testable.
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Criteria for a modicum of creativity
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Low level
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More than a de minimis quantum.
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Criteria for creativity
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Antithesis to the absence of creativity
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Insufficient creativity
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Consistency with ordinary discourse and everyday practice.
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Relations within and between categories.
The absence of creativity
and insufficient creativity
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so mechanical or routine as to require no creativity
whatsoever.
entirely typical … garden-variety … end-product ….
devoid of even the slightest trace of creativity’
(p.362)
could not be more obvious … most basic
information … insufficient creativity
dictated by state law … nothing remotely creative …
an age-old practice, firmly rooted in tradition and
so commonplace that it has come to be expected as
a matter of course … practically inevitable … timehonored tradition (pp. 362–363)
The absence of creativity
and insufficient creativity
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so mechanical or routine
entirely typical … garden-variety
could not be more obvious … the most basic
information
dictated by state law
an age-old practice, firmly rooted in tradition and so
commonplace that it has come to be expected as a
matter of course … practically inevitable … timehonored tradition
Exhaustive delineation.
Central ordinary discourse senses.
Relation between terms.
Conceptual analogy
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It seems that this importance [of Turing's
computability] is largely due to the fact that with
this concept one has for the first time succeeded in
giving an absolute definition of an interesting
epistemological notion, i.e., one not depending on
the formalism chosen. In all other cases treated
previously, such as demonstrability or definability,
one has been able to define them only relative to a
given language, and for each individual language it
is clear that the one thus obtained is not the one
looked for.
Kurt Gödel. Remarks before the Princeton
bicentennial conference on problems in
mathematics. 1946.
Correlations
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Specific verbal and conceptual correlations.
‘So mechanical’’ correlates with a mechanical
procedure or algorithm.
‘So mechanical’ and ‘dictated by ... law’ correlates with
an automatic mechanical procedure.
‘an age-old practice, firmly rooted in tradition and so
commonplace that it has come to be expected as a
matter of course … practically inevitable … time-honored
tradition’ correlates with
‘what would naturally be regarded as computable’,
intuitive.
‘no creativity whatsoever’ and ‘nothing remotely
creative’ (pp.362-363).
Other element of the extreme
absence of creativity
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Other element of the extreme absence of creativity.
‘entirely typical … garden-variety … end product
devoid of even the slightest trace of creativity’
(p.362).
Product
so ... routine.
Product as the result of a process.
All processes and the designated product included.
The absence of creativity
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Combination of elements within the extreme
absence of creativity.
The extreme absence of creativity is manifested
in an entirely typical or garden-variety end
product constructed by processes which
correspond to an automatic mechanical
procedure or to a so … routine process.
NOT-creative IF, AND ONLY, IF (automatic
mechanical procedure OR so ... routine
[process]) AND (entirely typical OR gardenvariety end-product)).
Creativity
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Derived conception of creativity.
Creativity is manifested in a not entirely typical or
garden-variety end product constructed by processes
which do not correspond to an automatic mechanical
procedure or to a so … routine process.
NOT-NOT-creative IF, AND ONLY, IF NOT ((automatic
mechanical procedure OR so ... routine [process]) AND
(entirely typical OR garden-variety end-product)).
Creative IF, AND ONLY, IF NOT ((automatic mechanical
procedure OR so ... routine [process]) AND (entirely
typical OR garden-variety end-product)).
Creativity
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Not-automatic mechanical procedure as the
primary differentiating element.
Value of not automatic.
Potential population of the not mechanical.
Random (has an analogue in automatic
procedures and in noise).
Non-human intervention.
Purposeful direct human intervention.
Issue of potential for copyrightability.
Creativity
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Alternative formulation for mechanical.
Church’s Thesis identifies the intuitive notion of
‘effective process’ with the purely syntactic idea of
string processing (Rosen, 1995, p.529).
Syntactic.
Alternative formulation for not-mechanical.
Not-syntactic.
Semantic, or meaning, as complement or opposite
to the mechanical or syntactic.
Strong and least sense of semantic.
Creativity
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Explicitly registered restriction on models of the
computational process.
the question of whether there exist finite nonmechanical procedures not equivalent with any
algorithm, has nothing whatsoever to do with the
adequacy of any definition of ‘formal system’ and of
‘mechanical procedure’. … such as those which
involve the use of abstract terms on the basis of
their meaning. (Gödel, 1964, p.72).
Creativity
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Information theory.
Often the messages to be transmitted have
meaning: they describe or relate to real or
conceivable events. However, this is not always
the case. In transmitting music, the meaning, if
any, is much more subtle than in the case of a
verbal message. In some situations the engineer is
faced with transmitting a totally meaningless
sequence of numbers or letters. In any case,
meaning is quite irrelevant to the problem of
transmitting the information (Shannon, 1956).
Creativity
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Distinction of semantic from syntactic
levels.
Ordinary discourse.
Deeply embedded historical contrast.
Direct semantic ratification (human
intervention).
Semantic as direct human intervention on
the basis of meaning.
Can potentially give rise to copyright.
Creativity
Practice and discourse of creativity.
 Consistent with practice
 Choice of alternative words
(mechanically or syntactically
generated) by their meanings from a
spell checker.
 Low levels of creativity.
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Creativity
Creativity and criteria established.
 Criteria for a modicum of creativity
 Low level.
 Criteria for creativity
 Consistency with everyday practice
and the instrument of labor.
 Antithesis to the absence of
creativity.
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Insufficient creativity
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‘Rural’s selection of listings could not
be more obvious: It publishes the
most basic information - name, town,
and telephone number - about each
person who applies to it for telephone
service. … insufficient creativity to
make it original’ (pp362-363)’.
Insufficient creativity
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‘insufficient creativity’
Below a modicum of creativity.
Could include a real degree of creativity.
Does not give rise to property.
‘insufficient’ as potentially denoting a
range rather than a fixed quantity.
Mediates between extreme absence and
modicum.
Insufficient creativity
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‘could not be more obvious’ (p.362)
Process.
Distinct from ‘so mechanical or routine’
and ‘age-old practice’.
Semantically more proximate to ‘so …
routine’ than to ‘so mechanical’.
Routine as the mediating element.
Consistent with derived conception of
creativity.
Insufficient creativity
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‘the most basic information’ (p.363).
Product
Raw data, data, most basic information,
information as underlying subject, the
precise words.
Information as humanly intelligible and
directly humanly produced.
Use of information and the computational
context.
Insufficient creativity
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‘could not be more obvious … the most
basic information … insufficient
creativity’ (p.362).
Mediating role for routine (process and
product).
Consistent with the derived concept of
creativity (some reinforcement).
Criteria
Insufficient creativity should be
consistent with the concept of creativity.
A quantum of creativity
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‘As a constitutional matter, copyright protects
only those constituent elements of a work that
possess more than a de minimis quantum of
creativity’ (p.363)
Existence of a quantum
Quantum as implying unit level or degree and
amount.
Largely unaltered conception of creativity.
Criteria
Have provided for a quantum of creativity as
less than a modicum of creativity.
A modicum of creativity
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A modicum of creativity
‘As a constitutional matter, copyright protects only
those constituent elements of a work that possess
more than a de minimis quantum of creativity’
(p.363).
More than the absence of creativity, ‘so mechanical
or routine ... entirely typical ... garden variety’, and
more than insufficient creativity, ‘could not be more
obvious ... the most basic information’.
Fuller understanding of creativity.
A modicum of creativity
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Criteria met.
Criteria for a modicum of creativity.
Low level
More than a de minimis quantum.
Criteria for creativity
Consistency with everyday practice
Insufficient creativity
Antithesis to the absence of creativity.
Manifestations of
creativity
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How can the distinguished levels of
creativity be directly known (from the
product)?
‘end product … devoid of even the slightest
trace of creativity’ (p.362).
It is generally not possible to establish
copying as a factual matter by direct
evidence. (Nimmer, 2009).
Manifestations of creativity:
the absence of creativity
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How to determine whether an utterance was
produced so mechanically or by creative activity.
Mechanical production.
Natural or intuitive (historically and experientially
acquired) understandings of what is naturally
computable.
Possibility of constructing procedures which give
rise to similar results, if mechanically produced.
Palmer’s Index to the Times
‘Mad dogs in Sheffield’.
Indexes to Internet search engines.
Manifestations of creativity:
insufficient creativity
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Oral argument.
MR. CAPLINGER: Communities. We decided to
include business listings within this. We decided
that in some communities we only put the town
where in other communities we put the full
address. We also decide what name, because my
full name might be a fact. But I go by several
names, James, Jim, Jay, JR, et cetera. And -QUESTION: I'm not stunned by the originality so
far.
(Laughter.)
Manifestations of creativity:
a quantum of creativity
A
semantically transformed
bibliographic record as one
possible correlate to more than
a de minimis quantum of
creativity.
 Other correlates (semantically
transformed indexes).
 Other forms of database.
Manifestations of creativity:
a modicum of creativity
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modicum of creativity is
more than a quantum of
creativity.
 Criterion derived from
originality
 A modicum of creativity
should be testable.
Manifestations of creativity
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Specific possibilities for creativity in
bibliographic productions.
Meaning irrespective of expression.
Related meanings (semantic) with similar
(syntactic) expressions can be both
semantically and syntactically or
mechanically connected.
Related meanings with strongly different
expressions may require direct semantic
intervention and creativity for linking.
Manifestations of creativity
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Related meanings with strongly different expressions.
Chandler, Hammett, Faulkner.
Raymond Chandler, Dashiell Hammett, William
Faulkner.
Film noir.
Generic relations.
Coordination imposed on data.
Demarcated from mechanical processes.
Forms of description which may be inescapably
directly semantic and human.
Manifestations of creativity
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Related meanings with strongly different expressions.
Oranges and lemons say the bells of St. Clemens.
Humanly simple and computationally intractable.
Childhood and creativity.
High levels of creativity.
When a poet’s mind is perfectly equipped for its work, it
is constantly amalgamating disparate experiences … falls
in love or reads Spinoza … the noise of the typewriter or
the smell of cooking; in the mind of the poet these
experiences are always forming new wholes. (Eliot,
1921)
Manifestations of creativity
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Added a substantive contrast to the
distinction between human semantic
intervention and syntactic transformations.
Criterion
Consistent with ordinary discourse and with
the use of the dominant instrument of labor
in everyday practice.
Link to historically established discourse.
Conclusion
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Criteria extracted.
Criterion derived from originality
A modicum of creativity should be testable.
Criteria for a modicum of creativity.
Low level
More than a de minimis quantum.
Criteria for creativity
Antithesis to the absence of creativity
Insufficient creativity
Consistency with ordinary discourse and everyday
practice (dominant instrument of labor).
Conclusion
Qualities as story.
 Simplicity and cumulative
development.
 Narrative progression parallel to the
conceptual structure of the opinion.
 Consistency from a strongly
established correlation.
 Absence of further assumptions.
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Conclusion
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Results of the analysis.
Discriminates the antithesis to creativity,
creativity, insufficient creativity, a
quantum of creativity, and a modicum of
creativity.
Consistent principle.
‘[S]o mechanical’ (p.362) or automatic as
the differentiating element.
Routine as the mediating element.
Underlying methodology
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‘[T]echnology’s involvement in human
affairs could be studied in ways that
allow for the abstract and general to
be tied to the concrete and specific’
(Kallinikos, 2004, p.157).