The Role of Scientific and Technical Data and Information in the Public Domain Proceedings of a Symposium (2003) / Chapter Skim
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Session 2: Pressures on the Public Domain -
Session 2: Pressures on the Public Domain -
10. Discussion Framework
Pages 71-86
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From page 71... ...
SESSION ~ PRESSURES ON THE Pug Lag DOMAIN
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From page 73... ...
If, as we have reason to fear, current trends will greatly diminish the amount of data available in the public domain, this decrease could initially compromise the scientific community' s ability to fully exploit the promise of the digital revolution. Moreover, if these pressures continue unabated and become institutionalized at the international level, they could disrupt the flow of upstream data to both basic and applied science and undermine the ability of academia and the private sector to convert cumulative data streams into innovative products and services.
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From page 74... ...
All data from the system would then belong to the government and would enter the public domain. Today, however, industry has successfully pursued a strategy of providing an independent supply of the government's needs for data and information products rather than building and delivering data collection systems for government agencies to operate.
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From page 75... ...
In contrast, recent legal developments in intellectual property law and contracts law have radically changed the preexisting regime. These and other related developments now make it possible to assert and enforce proprietarial claims to virtually all the factual matter that previously entered the public domain the moment it was disclosed.
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From page 76... ...
I then discuss current proposals to confer strong exclusive property rights on noncopyrightable collections of data, which constitute the clearest and most overt assault on the public domain that has fueled both scientific endeavors and technological innovation in the past. Expanding Copyright Protection of Factual Compilations: The Revolt Against Feist The quest for a new legal regime to protect databases was triggered in part by the U.S.
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From page 77... ...
In reality, these cases suggest that, in the absence of a suitable minimalist regime of database protection to alleviate the risk of market failure without impoverishing the public domain, courts tend to convert copyright law into a roving unfair competition law that can protect algorithms and other functional matter for very long periods of time and that could create formidable barriers to entry. This tendency, however, ignores the historical limits of copyright protection and ultimately jeopardizes access to the research commons.
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From page 78... ...
For the foreseeable future, nonetheless, the DMCA empowers owners of copyrightable collections of facts to contractually limit online access to the pre-existing public domain in ways that contrast drastically with the traditional availability of factual contents in printed works. ONE-SIDED ELECTRONIC LICENSING CONTRACTS Data published in print media traditionally entered the public domain under the classical intellectual property regime described above.
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From page 79... ...
Online delivery, coupled with technological fencing devices, potentially confers these same contractual powers on content providers in the absence of supporting intellectual property regimes, such as the DMCA discussed above, and the new database protection rights to be discussed below. The highly restrictive digital rights management technologies that are being developed include hardware- and software-based "trusted systems," online database access controls, and increasingly effective forms of encryption.
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Nonetheless, two states Maryland and Virginia have adopted nonuniform versions of UCITA, and major software and information industry firms continue to lobby assiduously for its enactment by other state legislatures. If present trends continue unabated, privately generated information products delivered online including databases and computer software may be kept under a kind of perpetual, mass-market trade secret protection, subject to no reverse engineering efforts or public-interest uses that are not expressly sanctioned by licensing agreements.
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From page 81... ...
This utilitarian rationale, however, raised new and still largely unaddressed questions about the unintended social costs likely to ensue if intellectual property rights were injudiciously bestowed upon the raw materials of the information economy in general and on the building blocks of scientific research in particular. Any serious effort to find an appropriate sui generis solution to the question of database protection accordingly should have engendered an investigation of the comparative economic advantages and disadvantages of regimes based on exclusive property rights as distinct from regimes based on unfair competition laws and other forms of liability rules.
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From page 82... ...
copyright law, which attaches only to the new matter added to an underlying, preexisting work and expires at a certain time.23 Finally, the directive carries no national treatment requirement into its sui generis component. Foreign database producers become eligible only if their countries of origin provide a similar form of protection or if they set up operations within the European Union.24 Nonqualifying foreign producers, however, may nonetheless seek protection for their databases under residual domestic copyright and unfair competition laws, where available.25 The E.C.'s Directive on the Legal Protection of Databases thus broke radically with the historical limits of intellectual property protection in at least three ways.
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From page 83... ...
One bill, H.R. 354, as revised in January 2000, embodied the proponents' last set of proposals for a sui generis regime built on an exclusive property rights model (although some effort was made to conceal that solution behind a facade that evoked unfair competition law)
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From page 84... ...
Because university administrators dislike litigation and are risk averse by nature, and this provision put the burden of showing reasonableness on them, there is reason to expect a chilling effect on customary uses by these institutions of data heretofore in the public domain. The bill recognized an "independent creation" norm, which presumably exempts any database, however similar to an existing database that was not the fruit of "copying."3i This provision codified a fundamental norm of copyright law, and the European Commission made much of a similar norm in justifying its own regulatory scheme.
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From page 85... ...
354, were offset to some degree by other express limitations on liability and by a codified set of misuse standards to help regulate licensing. To understand these further limitations, one should recall that liability even for wholesale duplication of all, or a discrete segment, of a protected database would not attach unless the unauthorized copy were sold or distributed in commerce and "in competition with" the protected database.4i The term "in competition with," when used in connection with a sale or distribution to the public, was then defined to mean that the unauthorized duplication "displaces substantial sales or licenses likely to accrue from the original database" and 35 u.s.
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From page 86... ...
In summary, the underlying purpose of H.R.1858 was to prohibit wholesale duplication of a database as a form of unfair competition. It thus set out to create a minimalist liability rule that would prohibit marketdestructive conduct rather than an exclusive property right as such, and in this sense, it initially posed a strong contrast to H.R.354.
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