Home  Database Protection Legislation
Database Protection Legislation
Last update:
28-Mar-2006 9:54
March 27
ALA joined a number of organizations in sending comments to the European Commission regarding the EU Database Directive of 1996 and urging the EC to withdraw the directive. The following comments were sent to Mr. Tilman Lueder of the European Commission on March 10, 2006:
Comments On Database Directive Policy Options
The undersigned organizations and law professors appreciate the opportunity to comment on the policy options outlined in the December 12, 2005 DG Internal Market and Services Working Paper on the Directive on the Legal Protection of Databases. We represent the interests of technology and financial services companies; libraries, scientists, scholars, and educational institutions; and consumers. We both produce databases and use databases compiled by others. For the past decade, we have opposed the adoption of overly protective database legislation in the United States. For the reasons set forth below, the “sui generis” right should be withdrawn.
The authors of the Working Paper are to be commended for their frank criticism of the “sui generis” right. The Working Paper candidly concedes that the “sui generis” right required by the Directive has not had its intended effect: it “has had no proven impact on the production of databases.” Working Paper at 20. The Working Paper acknowledges that “[i]nterpreting the precise scope of the ‘sui generis’ right has proved difficult,” and that the “’sui generis’ provisions have … created considerable legal uncertainty….” Id. at 15. Further, the Working Paper observes that “the complexity of the ‘sui generis’ regime may have caused confusion among certain users, in particular the academic and scientific community.” Id. at 22. Alarmingly, in the years since the adoption of the Directive, the European share of the global database market has decreased relative to that of the United States, and the ratio of European to U.S. database production has decreased from 1:2 to 1:3. Id.
The Working Paper wrestles with a seeming paradox: During the period in which the intellectual property protection for databases in the EU exceeded the protection available in the United States, the European share of the global database market decreased relative to that of the United States. This market data runs contrary to the widely-held assumption that “more and more layers of IP protection means more innovation and growth ….” Working Paper at 24. Indeed, this data seems to suggest that increasing intellectual property protection beyond a certain point actually provides a disincentive for innovation and creativity.
Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit once observed that
[o]verprotecting intellectual property is as harmful as underprotecting it. Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it's supposed to nurture.
White v. Samsung Electronics, 989 F.2d 1512, 1513 (9th Cir.)(Kozinski, J., dissenting), cert. denied, 113 S. Ct. 2443 (1993).
Judge Kozinski stressed that “intellectual property rights aren't free: They're imposed at the expense of future creators and of the public at large.” Id. at 1516. For this reason, “intellectual property law is full of careful balances between what's set aside for the owner and what's left in the public domain for the rest of us….” Id. The limits on intellectual property rights let the public use something created by someone else, but they “are necessary to maintain a free environment in which creative genius can flourish.” Id.
One of the critical balances in intellectual property law is that copyright protection in a database extends only to the original selection and arrangement of the facts in the database, but not to facts themselves. This principle of copyright law is recognized in the U.S. Supreme Court’s decision in Feist v. Rural Telephone, 111 S. Ct. 1282 (1991); in Chapter II of the European Union’s Database Directive; in Article 10.2 of GATT-TRIPS; and Article 5 of the WIPO Copyright Treaty. The exclusion of copyright protection for raw facts reflects an awareness that facts are the building-blocks of knowledge. If a publisher could exert a property right in facts, that publisher could prevent the use of those facts not only in new information products, but also in research in all fields of human endeavor. This, of course, would undermine the purpose of intellectual property: promoting, in the words of the U.S. Constitution, the progress of science and the useful arts.
The “sui generis” right runs contrary to this policy by coming “precariously close to protecting basic information.” Working Paper at 24. By preventing competitors from reusing information in new database products, the “sui generis” right restricts the development of innovative databases. Because the “sui generis” right overprotects databases, it is no surprise that the European database industry has lost market share to the United States industry, where facts remain in the public domain.
The 2004 decisions of the European Court of Justice withholding the “sui generis” right from databases consisting of facts “created” by the publisher certainly reduce the reach of the “sui generis” right. However, as the Working Paper notes, “other industries like the publishers of directories, listings or maps, remain protected as long as they do not ‘create’ their own data but obtain these data from others.” Working Paper at 13. Thus, many databases in Europe remain off limits as the source of information for new products.
Since the “sui generis” right places European companies at such a competitive disadvantage to U.S. database companies, one might expect the undersigned U.S. based associations to hope that the Commission decides to leave the “sui generis” right unchanged. However, many of the undersigned engage in operations in Europe, and thus have been adversely affected by the “sui generis” right. Moreover, U.S. users have been harmed by the slow growth of databases based on European information, particularly in the fields of finance and science.
Finally, the existence of the “sui generis” right in Europe gives impetus to the efforts of the small number of publishers that seek the adoption of overly protective database legislation in the United States. These publishers typically are sole source providers that seek to control all downstream uses of the information contained in their databases. These publishers claim that in order for them to benefit from the reciprocity provision of the Database Directive, the United States Congress must enact legislation establishing sui generis rights in the United States. Since 1996 Congress has resisted these demands, but the House of Representatives passed overly protective database legislation twice in 1998, and the House Judiciary Committee has endorsed such legislation on two other occasions. So long as the “sui generis” right exists in Europe, we will have to combat the enactment of similar legislation in the United States.
Accordingly, we respectfully suggest that both database developers and users in both the European Union and the United States would benefit from the withdrawal of the “sui generis” right.
Organizations:
- American Association of Law Libraries
- American Library Association
- Association of Research Libraries
- Computer & Communications Industry Association
- Digital Future Coalition
- Electronic Frontier Foundation
- Medical Library Association
- NetCoalition
- Public Knowledge
- Special Libraries Association
Law Professors (affiliation listed only for purposes of identification):
- Dan L. Burk, University of Minnesota
- Ray Corrigan, Open University
- Llewellyn J. Gibbons, University of Toledo
- James Gibson, University of Richmond
- Eric Goldman, Marquette University
- Cynthia Ho, Loyola University of Chicago
- Peter Jaszi, American University
- Mary LaFrance, University of Nevada, Las Vegas
- Michael Landau, Georgia State University
- Stephen M. Maurer, University of California, Berkeley
- Beth S. Noveck, New York Law School
- Malla Pollack, American Justice School of Law
- Jennifer Rothman, Washington University
- Pamela Samuelson, University of California, Berkeley
- Wendy Seltzer, Brooklyn Law School
- David E. Sorkin, John Marshall Law School
- Deborah Tussey, Oklahoma City University
- Jennifer Urban, University of Southern California
- Jane Winn, University of Washington
- Jonathan Zittrain, Oxford University
26 Jan
Database Protection
The ALA Midwinter Meeting in San Antonio just concluded. At the meeting, ALA’s Council passed a resolution (CD #20.6) concerning the European Commission‘s recent report on the EC’s Database Directive issued in 1996. That Database Directive (Directive 96/9/EC) gave a novel, unprecedented form of “sui generis” (one of a kind) legal protection to databases even if they are not sufficiently original to be copyrighted.
Many databases – which consist of individual pieces of information that have been organized in one collection so that the data are easier to access – are protected under copyright law because of the creative way that the information in them is selected, coordinated and arranged. However, under traditional copyright law, basic factual information is in the public domain and is not entitled to copyright protection. That means that databases that do not have a creative or original element – such as a phone book white pages – are not protected under U.S. copyright law.
In the ten years since the EC issued its Database Directive, large database producers, such as publishing companies, have worked very hard to convince Congress to pass a database protection bill like Europe’s. In response, American libraries have been in the forefront of fighting passage of database protection legislation in the U.S. We have argued that such protection would reverse the basic information policy of this country that facts are not creative in nature and cannot be owned.
In December 2005 the European Commission issued an evaluation of its Database Directive which concludes, among other things, that
- there is no evidence that the Database Directive has achieved its goal of stimulating the production of databases in Europe
- the “sui generis” protection for databases has given rise to legal uncertainty and to significant litigation in European courts and the courts of its member countries
- the “sui generis” protection for databases may harm legitimate business, research and education activities and threaten the fair use of information, including information in the public domain.
The European Commission has invited stakeholders, by March 12, 2006, to submit their views and comments and to provide further evidence on the economic impact of "sui generis" protection in stimulating the production of European databases. The ALA Council’s resolution urges the European Commission either to repeal its Database Directive or to withdraw the “sui generis” right while maintaining copyright protection for “original” databases.
H.R. 3872: The Consumer Access
to Information Act of 2004
"The Consumer Access to Information Act of 2004",
H.R. 3872, was introduced by Rep. Stearns (R-FL) on March 2, 2004 as an alternative
to H.R. 3261, the "Database and Collections of Misappropriation Act of
2003" that was recommended favorably out of the House Judiciary Committee
in January 2004. H.R. 3872 was referred to the House Energy and Commerce Committee
that subsequently favorably recommended the bill after unfavorably recommending
H.R. 3261.
H.R. 3872 is co-sponsored by Reps. Schakowsky (D-IL), Boucher
(D-VA), Upton (R-MI), Dingell (D-MI), Shadegg (R-AZ), Markey (D-MA), Pickering
(R-MS), Deutsch (D-FL), Terry (R-NE), Towns (D-NY), Issa (R-CA), Gordon (D-TN),
Rush (D-IL), Eshoo (D-CA), Green (D-TX), McCarthy (D-MO), Solis (D-CA), Gonzalez
(D-TX).
H.R. 3872 narrowly defines the definition of misappropriation
of a database and calls for Federal Trade Commission oversight and enforcement
while prohibiting private parties the right to sue. The House and Energy and
Commerce Committee approved the bill with no amendments.
The introduction of H.R. 3872 is considered a positive political
step by libraries and other opponents of database protection legislation because
it continues to emphasize the fundamental rift between the stakeholders and
will likely make it more difficult for any bill to pass this year. Libraries
continue to maintain that any database legislation is unnecessary but are grateful
to those Representatives who, recognizing the deep flaws in H.R. 3261, proposed
an alternative.
March 2, 2004:
Rep. Stearns (R-FL) and 18 co-sponsors introduced H.R. 3872, the Consumer Access to Information Act of 2004, a new version of database protection legislation. The House Energy and Commerce Committee approved the alternative bill and unfavorably reported out H.R. 3261, the Database and Collections of Information Misappropriation Act that the House Judiciary Committee had already favorably recommended.
[See ALAWON 8 March 2004]
January 21, 2004:
H.R. 3261 was amended and approved by the House Judiciary Committee and sent to the House Energy and Commerce Committee.
HR 3261: The Database and Collections
of Information Misappropriation Act
After years of negotiation led by both the House Judiciary and
House Energy and Commerce Committees, the Database and Collections of Information
Misappropriation Act (H.R. 3261) fails to respond to the fundamental concerns
of its many diverse opponents. Proponents of the bill, largely database producers
and publishers, have not been able to identify a gap in existing law that needs
to be filled or to demonstrate that their businesses have suffered because of
any lack in the law.
Proponents of H.R. 3261 seek to prohibit the misappropriation
of certain databases by making it illegal to take a "quantitatively substantial" part of the information in a database and make it commercially available in
the same market without the authorization of the database owner if
- the database was created and maintained through "substantial
expenditure of financial resources"
- the unauthorized use of it "occurs in a time sensitive
manner and inflicts injury on the database"
- the abilities of the unauthorized users to "free ride
on the efforts" of the owner threaten the "incentive to produce
the product" and consequently the existence of the database
If passed, H.R. 3261 would protect anyone who either creates
or maintains a database from unauthorized use of the information included in
it. This bill challenges the traditional notions of "fair use" and
goes further in seeking copyright protection for the facts held within the database.
Facts have never been eligible for copyright protection. Furthermore, the bill
could create perpetual ownership rights in a wide variety of data.
The bill's ambiguous language will lead to uncertainty and
increase the likelihood of litigation, a threat that will chill investment in
innovative information products. For example, the bill does not adequately define "time sensitivity" of the data and thus provides little guidance to
publishers and the courts. Libraries could be legally liable for performing
traditional library functions (e.g., inter-library loan, creating bibliographies).
A minimal amount of harm to a database producer could be sufficient to base
a claim of misappropriation. Anyone found to be liable could be fined triple
damages.
The broad protections granted to database producers by this
bill would lead to reduced competition in the database market and consequently
higher prices for libraries. This trend will exacerbate a market environment
in which the cost of academic journals and access to technical, scientific and
medical information is already straining the limited resources of libraries
and educational institutions. The advancement of research, the promotion of
progress and innovation will be further jeopardized.
Although H.R. 3261 provides several very narrow exceptions,
even these can still be overridden by "shrink-wrap" or "click-on"
contracts. The bill allows nonprofit educational, scientific and research institutions
to make substantial parts of databases available as long as it is for nonprofit
educational and research purposes. The exception applies only to nonprofit institutions
and only when their use of the database is for nonprofit purposes. The determination
of what such institutions are allowed to do is made only when they have already
been forced into a court under an allegation of misappropriation and a threat
of triple damages. The bill leaves it to the court to decide if that use is
"reasonable under the circumstances." The uncertainty created is likely
to discourage joint research and development activities between nonprofit institutions
and corporations.
The bill exempts databases generated and maintained by any government
entity but provides no exclusion for legal materials that have been created
at taxpayer expense. However, there is a question about the extent of a database
owners rights if government information is used in the development of the database.
There is no provision to ensure that legal and government information will remain
in the public domain. Although a government cannot protect its information,
others can claim that they are entitled to protection. It appears that a publisher
that incorporates government information in a database could prevent others
from making available that government information-even if it is not available
from another source.
Libraries and other opponents are concerned about important
points that are not adequately addressed in the legislation. The proposed legislation
- Fails to allow "fair use" of databases comparable
to that under copyright law
- Does not allow for the transformative uses of information
- Does not include any "first sale" provision
- Does not provide safeguards against monopolistic pricing
- Raises fundamental questions about the relationship between
the proposed legislation and copyright law
Background
Proponents of database protection (primarily publishers
and realtors) have been urging Congress for several years to pass legislation
that attempts to control downstream access to database information. There were
aggressive efforts in 2001 to pass a bill that would be detrimental to libraries.
Proponents of database protection legislation continued
their efforts to introduce a bill in the Fall of 2002, not only in the House
of Representatives, where intensive negotiating sessions with major stakeholders
had taken place over the past year and a half, but in the Senate as well.
Eleventh- hour meetings with congressional staff
by opponents, including ALA, forestalled the introduction of a bill in the Senate.
Despite these unsuccessful efforts, in October 2002,
Rep. Billy Tauzin (R-LA), House Energy and Commerce Chairman, and Rep. Jim Sensenbrenner
(R-WI), House Judiciary Committee Chairman, advised the House leadership that
they would continue to work on a framework for a draft bill that would include
broad language providing protection for commercial databases. The two committee
chairmen set a deadline of April 15, 2003 to come up with a new bill.
ALA continues to insist that any database protection
bill must allow “fair use” of databases comparable to that under
copyright law and permit downstream, transformative use of facts and government
produced data contained in a database.This remains a priority issue for the
ALA Washington Office.
The ALA is monitoring Database Protection legislation
because it poses a threat to the free flow of information and the public domain.
Under copyright law, basic factual information is in the public domain and is
not entitled to copyright protection. However, many databases -- which consist
of individual pieces of information that have been organized in one collection
so that the data are easier to access -- are protected because of the creative
way that the information is selected, coordinated and arranged. Databases may
also be protected from copying under other laws.
Some database creators argue that comprehensive,
electronically stored databases may not meet this legal standard -- because
they are not "arranged" or "selected" in a traditional sense. In addition, electronic
databases are more readily subject to piracy or other unauthorized copying and
distribution. Creators of databases fear loss of their substantial commercial
investment. Accordingly, some of the major commercial database publishers and
the National Association of Realtors have urged Congress over the past several
years to pass legislation that would provide what they believe is needed protection
to databases.
Dueling Database Protection
Bills
Throughout the 106th Congress ALA and the other national
library associations conducted extensive, and successful, grassroots lobbying
to defeat or delay repeated threats by the House leadership to allow floor votes
on H.R. 354. That bill -- the Collections of Information Antipiracy Act -- was
opposed by ALA as overly broad and detrimental to the library, scientific and
education communities.
Who is pushing for database protection
legislation and why?
The proponents of database protection legislation
are chiefly large database producers, such as publishing companies, the National
Association of Realtors, and eBay.
Under copyright law, basic factual information is
in the public domain and is not entitled to copyright protection. However, many
databases - which consist of individual pieces of information that have been
organized in one collection so that the data are easier to access - are protected
because of the creative way that the information in them is selected, coordinated
and arranged. Databases may also be protected from copying under other federal
laws, such as the No Electronic Theft (NET) Act, and under state laws, such
as misappropriation and trespass laws.
Nevertheless, some commercial database producers
want additional assurances of protection for their works, in which they have
considerable investment, and feel that current law does not give them the protection
from piracy they need. Digital works available over the Internet are considered
particularly vulnerable to unauthorized copying and dissemination.
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