Copyright, plagiarism, and bibliographies

The Chronicle has an interesting pseudonymous piece by an academic who prepared and maintained an online English-language bibliography about "a minor figure in early modern studies." Sent a review copy of a "foreign publisher's" bibliography on his* topic, he was initially amazed to find that the English-language section included everything he'd included in his bibliography. Then he figured out, based on common errors, that the reason for that was that the English-language section was his bibliography. Though he attributes his successful detective work to his training in medieval history, which "acquainted [him] with the practice of identifying dependencies among manuscripts by tracing the repetition of errors," this is the same method the telephone company used in Feist and that mapmakers use.

He wrote to the publisher, who replied that it would contact the authors, but expressed uncertainty whether (1) a web site could be copyrighted, and (2) a bibliography could be copyrighted. Given that it's a foreign publisher, I'll give (1) a pass, since the publisher might not have consulted a lawyer, but unless the publisher's country was one of the few adherent to no modern copyright treaty, web sites are copyrightable like every other form of presenting a work.

(2) would pose an interesting question in the US, since the bibliography is factual and since, as described, the selection principle is "everything." The Second Circuit recently dealt with a similar issue in assessing whether collecting the poems of Dorothy Parker was copyrightable if the selection principle was simply "all uncollected poems." Can sufficient creativity exist in deciding whether an article deals with a particular historical figure, or whether a collection of words is a poem? (Side note: the Dorothy Parker Society site has a blow-by-blow account of the testimony in this hard-fought copyright case, if anyone's interested in what the rare infringement trial to a jury looks like. God bless the internet, despite what it allowed to happen to our poor pseudonymous author -- how else would such an account be available to us?) In many other countries, however, the author's hard work would also provide an entitlement to copyright, regardless of whether it evidenced a creative spark. My guess -- the bibliography would be entitled to a thin copyright even in the US, which would be infringed by simple duplication.

The real issue here, as the publisher recognized, is plagiarism, which is not coextensive with copyright protection. This was a clear case of plagiarism -- violation of academic standards of credit and citation -- regardless of whether copyright infringement occurred. Fittingly, the author asked for credit as a co-editor as a remedy, to which the publisher agreed -- though the book itself was apparently not reprinted, so the author may be the only one with a copy that bears proper attribution.

This raises a practice point. When I was consulted informally on a similar issue -- large portions of an acquaintance's book had been reprinted in a law journal article -- I suggested that he approach the editors, who were likely to be appalled at his revelation, with a specific list of requests, including the emendation of any electronic versions and the printing and distribution of an errata sheet to subscribers. They quickly agreed. In this case, the author might have asked for some more affirmative action on the publisher's part -- to send an errata sheet to known purchasers and to change the cataloging information of the book so that credit would be more widespread. The author can use the credit in his tenure case, but he'd like more.

Finally, I was a little surprised that the author ended up reviewing the book and making no mention of the fact that the English-language portion was his own work. His review, even if it did identify weaknesses in the book, amounted to grading his own work. For the very reason academics hate plagiarism, his readers would have wanted to know that he wrote a chunk of the book under review.

*I say "his" because the author mentions a pregnant wife, but of course I'm playing the odds and might be wrong.