The paper seeks to explore the rights of researchers to use facts gathered from previous authors, even when there are only one or a small number of sources, and also to explore the limits of non‐literal copying of textual materials.
The paper consists of a conceptual analysis of legislation and cases that illustrate the effects of the law.
The paper finds that the charge of non‐literal copying of factual literary works is not accepted because of low levels of originality in structure of the material. Public policy based on the needs of scholarship provides a more predictable level of access to the contents of works.
Originality arguments are always open to try again. Only a policy statement will give a degree of certainty.
The paper aids in distinguishing the originality and policy arguments and who benefits from each, and also relates this problem to the more familiar one of the protection of free speech.
