Abstract:
A common saying in copyright law is that there is no copyright in facts or information (the idea/expression dichotomy). If this saying were true, facts and information could be extracted from one work and used freely in another, and it would strengthen the often-made argument that copyright does not create a monopoly. But as this article explains, the saying is simply a myth: copyright law is used to prevent a second comer from copying facts and information. The causes are the courts’ seemingly blind adherence to the proverb “thou shalt not steal”, the use of the compilation category of work and the “sweat of the brow test”. The protection of facts and information is undesirable, but it is too late to turn back the clock. A solution is proposed: a flexible substantiality test that can be used to make it more likely that only directly competing material will infringe copyright in factual works.