Do lies turn facts into creative works?

Question

In the answer to an earlier question of mine, there was this statement and comment:

Answer:

mapping companies make deliberate errors in their data such as adding streets or geographic features that don’t exist. While the data about real streets and geographic features is a fact and not subject to copyright. “Facts” about fictional things are creative works and are subject to it. So if you reverse engineer Google map’s data and create your own map, you will be in breach of copyright because your map will include the same fictional information. Gotcha!

BTW, paper mapmakers did this too; including Ordinance Survey maps.

Comment:

Apparently fictional facts also were used to protect Trivial Pursuit decks from copying.

My first thought was does that mean I can lie to a journalist, and if they print the lie I can claim copyright on there whole distribution? Then I thought what if ensembl is doing this? They could be quitely introducing synonymous substitutions into the data, and then at a later date reveal the intentional inaccuracies and claim copyright over most of the biomedical field that uses their data (which could well be in the region of a trillion dollars at this point)?

I am sure they are not, not least because the data is hosted independently at the UCSC.

Is this really true? Can an organisation present data as factual, and therefore not protected by copyright, and then at a later date reveal that it contained inaccuracies so the users are in breach of copyright, and are liable for damages to the entity that introduced the inaccuracies?

Answer 1

Your question is at heart a difficult philosophical one: what is a "fact"? A fact is some describable aspect of reality, and it is not the sentence used to describe reality. It is more like "an abstract logical proposition, free from language". Copyright law protects the specific expression of an idea in a language (it could be via some other symbolic means but let's avoid the complexity of a 'lying picture'). The propositions that underlie a protected work do not have to be true (therefore works of fiction are canonical examples of copyright-protected works). From a legal perspective, truth does not determine what the "fact" is, therefore you cannot claim copyright over an actually-factual work by inserting a false assertion into the work.

Your original scheme for copying involved actual copying without permission plus a transformation of the original work. When you speak to a reporter (a) you understand that the reporter will extra both "facts" and "expression" from the interview – which when it leaves your mouth is not a creative work with a fixed form and (b) you voluntarily agree to letting the reporter disseminate that content. So there is no impermissible copying, irrespective of the veracity of your claims.

The relevance of injecting fake data into an otherwise factual database is that it provides proof of an illegal act – copying a protected work without permission. Google Maps is clearly a "creative work", and you have provably copied (without permission) a creative work. The Fibonacci sequence is not a protected work and aside from the millenia-old mathematical insight underlying the sequence, it is not a "creative work", so you cannot be sued for copying it from a web page, even if they insert a false entry (6767).

Answer 2

Expressions of facts are protected by copyright

The first quote misrepresents the reality (my bad, I wrote it).

Google maps is a creative work and is fully protected by copyright. You can’t copy it, make derivative works etc. without their permission or a fair use/dealing exception.

The facts that are embedded in that creative work about the location of roads etc. are not protected by copyright. You can go and collect those facts (including from Google maps) and publish your own map without infringing Google’s copyright. However, if you don’t take the time to verify what parts are facts and what aren’t then you are not making an independent work based on the facts, you are making an unlawful derivative work and, one that is provably a copy.

You don’t have copyright in what you say

Copyright only exists in literary of dramatic works that have been fixed in tangible form. Most things you say are not so fixed.

If you are reading a written speech copyright exists in the written speech, not the delivery, and belongs to the speechwriter, not the speaker. If a journalist records what you say (by recording OT in notes) then they own the copyright as they are the one who fixed it in tangible form.

Notwithstanding, a journalists use of copyright material for reporting the news is almost certainly fair use/dealing.

Answer 3

Is this really true? Can an organisation present data as factual, and therefore not protected by copyright, and then at a later date reveal that it contained inaccuracies so the users are in breach of copyright, and are liable for damages to the entity that introduced the inaccuracies?

No, that would never work in the United States. In effect, by presenting the data as factual, you have represented that you hold no copyright interest in the data that you would only hold were the data not factual. If that representation results in you having any damages, you have only yourself to blame.

This is why the use of fake streets in maps doesn't work either. You can't represent that the streets are real and then sue someone for copyright infringement when their infringement was induced by your misrepresentation.

Now you might think you can still pull this off by alerting people that your work contains some fictional elements. They then wouldn't want to take the risk of duplicating those fictional elements. You could try to get people to, out of an abundance of caution, not take anything from your work -- even the facts that are not protected by copyright.

But allowing this kind of abuse would allow people to get the effect of extending copyright protection to facts. Copyright protection for facts is not available specifically because such a thing would be a disastrous public policy. So US law prohibits you from creating a scheme to extend copyright to cover things not covered by the law itself. This doctrine, in the case of copyright, is called "copyright misuse".

DGI nevertheless insists that, even assuming that it committed acts of copyright infringement, the "copyright misuse" doctrine precludes injunctive relief based on that infringement. This doctrine — which has its historical roots in the unclean hands defense — "bars a culpable plaintiff from prevailing on an action for the infringement of the misused copyright." It "forbids the use of the [copyright] to secure an exclusive right or limited monopoly not granted by the [Copyright] Office and which it is contrary to public policy to grant." -- Alcatel v. DGI, 166 F.3d 772 (Fifth Circuit, 1999)

This comes from a long line of cases that establish that one cannot claim the protection of patent or copyright when one has unclean hands, that is, when one attempted to misuse the rights granted by patent or copyright to acquire rights not available under those intellectual property regimes and that the government has specifically decided that it would be a bad idea for intellectual property owners to have.

Answer 4

Depends on the jurisdiction. There are many places where databases of publicly available facts may hold their own copyright even if individual facts would be free to use. The purpose of that law is to protect/reward the effort that went into assembling the database from public information. The problem might be in proving that someone used the database and did not re-create it from public information, and there the 'lie' matters -- it is evidence of the copying.

Likewise, a modern photograph of an ancient, copyright-protection-expired artwork may be copyright-protected in itself to protect/reward the effort of the photographer. Taking your own picture of the original would be legal, provided you had access to it (museums might regulate commercial photography of their art).