I don’t think copyright can enter into it, by dint of the fact that registry data, being purely factual and publicly available, cannot be copyrighted.
On March 27, 1991, in a case that transformed the nascent online database publishing industry, the Supreme Court ruled unanimously that there is no copyright protection for purely factual products such as a telephone directory white pages.
The plaintiff in the case was Kansas Rural Telephone Service (KRTS) , and the defendant regional phone book producer Feist Publications Inc… Feist asked KRTS, which published its own “white pages” for its subscribers in Kansas, to purchase the right to use its local listings in compiling its broader regional directory. KRTS refused, but Feist used the information anyway, copying at least 1,309 names, towns and telephone numbers of KRTS subscribers. KRTS then filed a copyright infringement suit.
A basic principle of copyright law is that facts themselves cannot be copyrighted because they are not “original works of authorship.” However, compilations of facts can be copyrighted, under the 1976 copyright law, if they are “selected, coordinated or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.” An example of a compilation copyright is an anthology of fiction stories, collected on a single theme based on author, topic, or some other relationship. The compilation of just those stories creates a new “original work”, albeit one that the author would still need a license from the individual story authors to create. An example of a modern infringing idea of a composite work is a “mix tape” of songs, collected without the original authors’ permission
SCOTUS’ opinion, authored by Justice Sandra Day O’Connor, said telephone directories – which do nothing more than list subscribers in alphabetical order – do not meet that test. Feist thus did nothing wrong, and needed no permission, or license, from KRTS. Feist could simply copy records from the KPRS listings and use them without paying one red cent to KRTS.
“It is not only unoriginal, it is practically inevitable,” the decision states. “This time-honored tradition does not possess the minimal creative spark required by the Copyright Act and the Constitution.”
SCOTUS then said a number of lower courts were wrong when they decided compilations, such as geographical sorting or other works, were entitled to copyright protection by a “sweat of the brow” test, in which the amount of effort that went into gathering and arranging the data is substantial.
Originality, not effort, is the “touchstone of copyright protection,” according to the decision, further stating that copyright “is not a tool by which a compilation author may keep others from using the facts or data he or she has collected.”
So it is certain that domain registry records, which are purely factual and publicly available, cannot be copyrighted.
They lack “originality”.
-mel
