The question of whether data is protected by copyright law has resurfaced with renewed urgency as businesses increasingly rely on large datasets, analytics platforms, and AI-driven systems. While the foundational principles of copyright remain stable, their application to modern data structures continues to evolve.
For practitioners, the challenge lies not in memorizing bright-line rules, but in understanding how courts assess originality in contexts where creativity and functionality overlap.
The Foundational Rule: Facts Are Not Copyrightable
U.S. copyright law has long drawn a clear distinction between facts and expression. Facts, measurements, and raw data points are not protected, regardless of the effort required to collect them. This principle, reaffirmed in Feist Publications v. Rural Telephone Service, remains the starting point for any analysis.
However, Feist also recognized that original selection, coordination, or arrangement of factual material may qualify for protection, provided it reflects minimal creativity.
That caveat is where modern disputes increasingly arise.
Modern Datasets Are Rarely “Just Facts”
Contemporary datasets often involve layers of human judgment, including:
- decisions about which data to include or exclude,
- categorization or labeling schemes,
- normalization and formatting choices, and
- structural organization designed for specific use cases.
These design choices may reflect creative discretion rather than mere mechanical compilation. As a result, courts are frequently asked to determine whether the dataset embodies protectable expression or is simply a functional aggregation of information.
The analysis is highly fact-specific and increasingly consequential.
Functional Constraints Complicate Copyright Claims
A recurring obstacle for data owners is functionality. Where a dataset’s structure is dictated primarily by technical necessity, efficiency, or industry standards, courts are less likely to find protectable originality.
This tension is particularly acute in contexts such as:
- machine-readable datasets,
- training data for AI systems,
- financial or scientific databases, and
- standardized taxonomies or schemas.
Even where creativity exists, it may be filtered out if it merges with functional requirements or leaves too few expressive alternatives.
Why Outcomes Can Appear Inconsistent
Practitioners often observe that data-related copyright cases produce uneven results. This is not necessarily doctrinal inconsistency, but a reflection of how closely courts tie protection to specific expressive choices.
Small differences in:
- how data is curated,
- how categories are defined, or
- how relationships are expressed
can determine whether protection exists and how far it extends.
As datasets become more complex and valuable, these distinctions carry greater commercial weight.
Strategic Implications for IP Protection
Given the uncertainty, companies increasingly rely on layered protection strategies, including:
- copyright (where expressive elements exist),
- trade secret law (for non-public datasets),
- contract restrictions and licensing terms, and
- technological access controls.
For practitioners advising data-driven clients, the key is aligning legal strategy with how the data is created, maintained, and used rather than assuming copyright alone will suffice.
Conclusion
The question of whether data is copyrightable does not lend itself to a simple yes or no. As courts continue to refine how originality applies to modern datasets, the answer will remain context-dependent and fact-specific.
For IP practitioners, understanding these nuances is essential, not only for litigation risk, but for advising clients on how to structure, protect, and commercialize data assets in an increasingly information-driven economy.
Looking to Protect Your Intellectual Property?
Please contact Arlen Olsen at Schmeiser, Olsen & Watts LLP at aolsen@iplawusa.com.
About the Author
Mr. Olsen, a former adjunct professor of intellectual property law, has over 30 years of experience in all aspects of intellectual property law. Mr. Olsen is a founding Partner of Schmeiser, Olsen & Watts LLP and a former United States Patent Examiner. Mr. Olsen has prosecuted numerous patents that have been litigated and received damages of over 60 million dollars. Additional activities include teaching seminars, appearing as a guest lecturer on intellectual property matters for corporations and educational institutions, and evaluating and consulting with clients regarding the scope, enforcement, and protection of intellectual property rights.
