Data is of particular importance to businesses in the financial sector. This blog post provides a high level overview of how United States copyright law treats data.

U.S. copyright protection for raw, unstructured data is generally regarded as thin or unavailable. The reason for this is that such raw data may not satisfy the creativity requirement for “original works of authorship.”[1] To the extent that individual data points represent facts, “facts do not owe their origin to an act of authorship.”[2] However, there are circumstances where the courts have been willing to extend copyright protection to works that involve data and are sufficiently creative.

For example, compilations of data do garner copyright protection if the data is “selected, coordinated or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.”[3] Importantly, the copyright protection resides in the original aspects of the data compilation — the selection and arrangement of the data.[4] Thus ownership of a copyrightable database does not necessarily prevent third parties from using the underlying facts contained within that database. Another example is a creative classification scheme or taxonomy of data or numbers, which could also potentially be subject to copyright protection.[5]

However, because of the creativity requirement and the fact that U.S. law does not have a sui generis form of protection for data (like the database right in the EU), it is important for businesses in the financial sector to document permissions and restrictions for use of market data in contracts. While a business may not be able to prevail against a third party on a copyright infringement theory for unauthorized use of the business’s data, it may be possible to prevail on a breach of contract claim.[6]

To the extent that there are gaps in existing legal protections for data, we may see businesses turn to the blockchain as a technological (rather than legal) mechanism for tracking and monetizing their data.

[1] 17 U.S.C. § 106.

[2] Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 345 (1991).

[3] 17 U.S.C. § 101; see also Feist, 499 U.S. at 348.

[4] See, e.g., CCC Info. Servs., Inc. v. Maclean Hunter Mkt. Reports, Inc., 44 F.3d 61, 67 (2d Cir. 1994).

[5] American Dental Assoc. v. Delta Dental Plans Assoc., 126 F.3d 977 (7th Cir. 1997).

[6] The copyright law’s ability to preempt state breach of contract claims is not without debate. Nevertheless, courts in the Second Circuit have permitted such claims to co-exist. See BanxCorp v. Costco Wholesale Corp., 978 F. Supp. 2d 280, 315-16 (S.D.N.Y. 2013) (citing Forest Park Pictures v. Universal Television Network, Inc., 683 F.3d 424 (2d Cir. 2012)) (finding copyright infringement claim not equivalent to a breach of contract claim, and noting three differences between the two claims: (1) plaintiff asserted a right to receive payment under the applicable contract, (2) the contract claim required proving mutual assent and valid consideration, and (3) the contract claim only entailed an assertion of rights against the defendant, rather than the public at large).