The absence of creativity in Feist and the computational process

The decision of the U.S. Supreme Court in 1991 in Feist Publications, Inc. v. Rural Tel. Service Co. affirmed originality as a constitutional requirement for copyright. Originality has a specific sense and is constituted by a minimal degree of creativity and independent creation. The not original is the more developed concept within the decision. It includes the absence of a minimal degree of creativity as a major constituent. Different levels of absence of creativity also are distinguished, from the extreme absence of creativity to insufficient creativity. There is a gestalt effect of analogy between the delineation of the not original and the concept of computability. More specific correlations can be found within the extreme absence of creativity. "[S]o mechanical" in the decision can be correlated with an automatic mechanical procedure and clauses with a historical resonance with understandings of computability as what would naturally be regarded as computable. The routine within the extreme absence of creativity can be regarded as the product of a computational process. The concern of this article is with rigorously establishing an understanding of the extreme absence of creativity, primarily through the correlations with aspects of computability. The understanding established is consistent with the other elements of the not original. It also revealed as testable under real-world conditions. The possibilities for understanding insufficient creativity, a minimal degree of creativity, and originality, from the understanding developed of the extreme absence of creativity, are indicated. 

Analogies to semantic and syntactic mental labour in the Feist decision

The Supreme Court of the United States in Feist v. Rural (Feist, 1991) specified that compilations or databases, and other works, must have a minimal degree of creativity to be copyrightable. The significance and global diffusion of the decision is only matched by the difficulties it has posed for interpretation. The judgment does not specify what is to be understood by creativity, although it does give a full account of the negative of creativity, as ‘so mechanical or routine as to require no creativity whatsoever’ (Feist, 1991, p.362). The negative of creativity as highly mechanical has particularly diffused globally.

A recent interpretation has correlated ‘so mechanical’ (Feist, 1991) with an automatic mechanical procedure or computational process, using a rigorous exegesis fully to correlate the two uses of mechanical. The negative of creativity is then understood as an automatic computation and as a highly routine process. Creativity is itself is conversely understood as non-computational activity, above a certain level of routinicity (Warner, 2013).

The distinction between the negative of creativity and creativity is strongly analogous to an independently developed distinction between forms of mental labour, between semantic and syntactic labour. Semantic labour is understood as human labour motivated by considerations of meaning and syntactic labour as concerned solely with patterns. Semantic labour is distinctively human while syntactic labour can be directly humanly conducted or delegated to machine, as an automatic computational process (Warner, 2005; 2010, pp.33-41).

The value of the analogy is to greatly increase the intersubjective scope of the distinction between semantic and syntactic mental labour. The global diffusion of the standard for extreme absence of copyrightability embodied in the judgment also indicates the possibility that the distinction fully captures the current transformation in the distribution of mental labour, where syntactic tasks which were previously humanly performed are now increasingly conducted by machine.

The paper has substantive and methodological relevance to the conference themes. Substantively, it is concerned with human creativity, with rationality as not reducible to computation, and has relevance to the language myth, through its indirect endorsement of a non-computable or not mechanical semantics. These themes are supported by the underlying idea of technology as a human construction. Methodologically, it is rooted in the humanities and conducts critical thinking through exegesis and empirically tested theoretical development

References

Feist. (1991). Feist Publications, Inc. v. Rural Tel. Service Co., Inc. 499 U.S. 340.

Warner, J. (2005). Labor in information systems. Annual Review of Information Science and Technology. 39, 2005, pp.551-573.

Warner, J. (2010). Human Information Retrieval (History and Foundations of Information Science Series). Cambridge, MA: MIT Press.

Warner, J. (2013). Creativity for Feist. Journal of the American Society for Information Science and Technology. 64, 6, 2013, pp.1173-1192.

Evaluating the quality of learning in Computer Supported Co-operative Learning

Can learning quality be maintained in the face of increasing class size by the use of Computer Supported Co-operative Learning (CSCL) technologies? In particular, can Computer-Mediated Communication promote critical thinking in addition to surface information transfer? We compared face-to-face seminars with asynchronous computer conferencing in the same Information Management class. From Garrison's theory of critical thinking and Henri's critical reasoning skills, we developed two ways of evaluating critical thinking: a student questionnaire and a content analysis technique. We found evidence for critical thinking in both situations, with some subtle differences in learning style. This paper provides an overview of this work.

Selection Power and Selection Labor for Information Retrieval

This study examines the relation between selection power and selection labor for information retrieval (IR). It is the first part of the development of a labor theoretic approach to IR. Existing models for evaluation of IR systems are reviewed and the distinction of operational from experimental systems partly dissolved. The often covert, but powerful, influence from technology on practice and theory is rendered explicit. Selection power is understood as the human ability to make informed choices between objects or representations of objects and is adopted as the primary value for IR. Selection power is conceived as a property of human consciousness, which can be assisted or frustrated by system design. The concept of selection power is further elucidated, and its value supported, by an example of the discrimination enabled by index descriptions, the discovery of analogous concepts in partly independent scholarly and wider public discourses, and its embodiment in the design and use of systems. Selection power is regarded as produced by selection labor, with the nature of that labor changing with different historical conditions and concurrent information technologies. Selection labor can itself be decomposed into description and search labor. Selection labor and its decomposition into description and search labor will be treated in a subsequent article, in a further development of a labor theoretic approach to information retrieval.

Linguistics and Information Theory: Analytic advantages

The analytic advantages of central concepts from linguistics and information theory, and the analogies demonstrated between them, for understanding patterns of retrieval from full-text indexes to documents are developed. The interaction between the syntagm and the paradigm in computational operations on written language in indexing, searching, and retrieval is used to account for transformations of the signified or meaning between documents and their representation and between queries and documents retrieved. Characteristics of the message, and messages for selection for written language, are brought to explain the relative frequency of occurrence of words and multiple word sequences in documents. The examples given in the companion article are revisited and a fuller example introduced. The signified of the sequence stood for, the term classically used in the definitions of the sign, as something standing for something else, can itself change rapidly according to its syntagm. A greater than ordinary discourse understanding of patterns in retrieval is obtained.

Analogies between linguistics and information theory

An analogy is established between the syntagm and paradigm from Saussurean linguistics and the message and messages for selection from the information theory initiated by Claude Shannon. The analogy is pursued both as an end itself and for its analytic value in understanding patterns of retrieval from full text systems. The multivalency of individual words when isolated from their syntagm is contrasted with the relative stability of meaning of multi-word sequences, when searching ordinary written discourse. The syntagm is understood as the linear sequence of oral and written language. Saussureâ??s understanding of the word, as a unit which compels recognition by the mind, is endorsed, although not regarded as final. The lesser multivalency of multi-word sequences is understood as the greater determination of signification by the extended syntagm. The paradigm is primarily understood as the network of associations a word acquires when considered apart from the syntagm. The restriction of information theory to expression or signals, and its focus on the combinatorial aspects of the message, is sustained. The message in the model of communication in information theory can include sequences of written language. Shannonâ??s understanding of the written word, as a cohesive group of letters, with strong internal statistical influences, is added to the Saussurean conception. Sequences of more than one word are regarded as weakly correlated concatenations of cohesive units.

Description and search labor for information retrieval

Selection power is taken as the fundamental value for information retrieval systems. Selection power is regarded as produced by selection labor, which itself separates historically into description and search labor. As forms of mental labor, description and search labor participate in the conditions for labor and for mental labor. Concepts and distinctions applicable to physical and mental labor are indicated, introducing the necessity of labor for survival, the idea of technology as a human construction, and the possibility of the transfer of human labor to technology. Distinctions specific to mental labor, particular between semantic and syntactic labor, are introduced. Description labor is exemplified by cataloging, classification, and database description, can be more formally understood as the labor involved in the transformation of objects for description into searchable descriptions, and is also understood to include interpretation. The costs of description labor are discussed. Search labor is conceived as the labor expended in searching systems. For both description and search labor, there has been a progressive reduction in direct human labor, with its syntactic aspects transferred to technology, effectively compelled by the high relative costs of direct human labor compared to machine processes.

A labor theoretic approach to information retrieval

This article synthesizes the labor theoretic approach to information retrieval. Selection power is taken as the fundamental value for information retrieval and is regarded as produced by selection labor. Selection power remains relatively constant while selection labor modulates across oral, written, and computational modes. A dynamic, stemming principally from the costs of direct human mental labor and effectively compelling the transfer of aspects of human labor to computational technology, is identified. The decision practices of major information system producers are shown to conform with the motivating forces identified in the dynamic. An enhancement of human capacities, from the increased scope of description processes, is revealed. Decision variation and decision considerations are identified. The value of the labor theoretic approach is considered in relation to pre-existing theories, real world practice, and future possibilities. Finally, the continuing intractability of information retrieval is suggested.

So mechanical or routine: The not original in Feist

The United States Supreme Court case of 1991, Feist Publications, Inc. v. Rural Tel. Service Co., continues to be highly significant for property in data and databases, but remains poorly understood. The approach taken in this article contrasts with previous studies. It focuses upon the “not original” rather than the original. The delineation of the absence of a modicum of creativity in selection, coordination, and arrangement of data as a component of the not original forms a pivotal point in the Supreme Court decision. The author also aims at elucidation rather than critique, using close textual exegesis of the Supreme Court decision. The results of the exegesis are translated into a more formal logical form to enhance clarity and rigor.


The insufficiently creative is initially characterized as “so mechanical or routine.” Mechanical and routine are understood in their ordinary discourse senses, as a conjunction or as connected by AND, and as the central clause. Subsequent clauses amplify the senses of mechanical and routine without disturbing their conjunction.


The delineation of the absence of a modicum of creativity can be correlated with classic conceptions of computability. The insufficiently creative can then be understood as a routine selection, coordination, or arrangement produced by an automatic mechanical procedure or algorithm. An understanding of a modicum of creativity and of copyright law is also indicated.


The value of the exegesis and interpretation is identified as its final simplicity, clarity, comprehensiveness, and potential practical utility.