A Question of Balance Private Rights and the Public Interest in Scientific and Technical Databases (1999) / Chapter Skim
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3 Access to and Protections for Databases: Existing Policies and Approaches
3 Access to and Protections for Databases: Existing Policies and Approaches
Pages 51-72
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From page 51... ...
The E.U. Directive also stipulates that sui generis protection for databases in Europe will be extended to foreign database rights holders only if their home countries have adopted substantially similar 1 499 U.S.
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From page 52... ...
database producers and vendors the most, based on input received at the committee's January 1999 workshop. Nevertheless, it is important to note that all other laws protecting foreign rights holders in the European Union remain independently applicable to them under the national treatment clause of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement)
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From page 53... ...
and enjoy improved educational opportunities through increased access to data and information, opportunities that are inherently beneficial in their own nght.9 Thus, the position of Congress has been to support the development of secondary markets for government information by individuals and private businesses, and to otherwise encourage the distribution of government information in the public interest.
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From page 54... ...
establishes particular criteria for withholding or refers to particular types of matters to be withheld; (4) trade secrets and commercial or financial information obtained from a person and privileged or confidential; (5)
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From page 55... ...
of OMB Circular A-110, "Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Not-for-profit Organizations,''l9 states that the recipient of a grant or agreement subject to this circular "may copyright any work that is subject to copyright and was developed, or for which rights holdership was purchased, under an award. The Federal awarding agency~ies)
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From page 56... ...
he director, or in the case of a contractor-operated laboratory, the agency, for a period of up to 5 years after development of information that results from research and development activities conducted under this chapter and that would be a trade secret or commercial or financial information that is privileged or confidential if the information had been obtained from a non-Federal party participating in a cooperative research and development agreement, may provide appropriate protections against the dissemination of such information, including exemption from subchapter II of chapter 5 of Title 5.
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From page 57... ...
government.24 As such, most state and local governments believe they have the option of asserting copynght in their public records if they choose to do so. Some legal scholars argue that although allowed by law, generally it is unwise economic and social policy for state and local governments to allow government commercialization of public information.25 Other legal scholars argue that claims of copynght by state and local governments in many of their works and databases are illegal.26 Under the patents and copynght clause of the U.S.
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From page 58... ...
EXISTING PROTECTIONS FOR DATABASES IN THE UNITED STATES Currently available legal protections of databases in the United States include copynght, private contracts and licensing, trade secret law, and state unfair 30 Iver Petersen (1997) , "Public Information, Business Rates: State Agencies Turn Data Base Records Into Cash Cows," New York Times, July 14, p.
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From page 59... ...
Legal Protections Copyright Law A database can be protected under the Copyright Act as a "compilation," defined as a work that results from the collection and assembly of data that are "selected, coordinated, and arranged" in an original way.31 As the Supreme Court stated in the Feist decision, if the selection or arrangement of the data displays a "modicum of creativity" it is protectable by copyright.32 The term of copyright protection is long the life of the author plus 70 years, or in the case of a work for hire, the shorter of 95 years from first publication or 120 years from the year of creation.33 An unauthorized reproduction, which is not otherwise privileged by the law, is illegal, and substantial civil and criminal remedies exist to punish infringers.34 Since the fall of 1998, copyright law has prohibited the manufacture and sale of devices designed primarily to circumvent technologies such as signal scrambling and encryption that are used to protect copyrighted works. Beginning in the fall of 2000, the law will also prohibit the attempt to circumvent such technological protections.
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From page 60... ...
Unlike in Europe and in many other countries, U.S. copyright law does not protect works of authorship created by the federal government.40 This asymmetry is significant, since a similar asymmetry with the European Union would exist upon enactment of any new database protection legislation in the United States.
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From page 61... ...
Database rights holders can easily protect their interests with a confidentiality agreement when distribution of a database is limited to those who directly contract with them. The fact that contract terms are only effective between the contracting parties and not binding on third parties who may get access to the database has been cited as a weakness,43 since many databases must be publicly distributed in order to be commercially viable.
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From page 62... ...
Trade Secret Law State trade secret law protects valuable commercial information that is kept secret by its rights holder from unauthorized access or reproduction by improper means.48 Trade secret doctrines do not require that the information be kept absolutely secret, but the trade secret rights holder must take reasonable steps to maintain the confidentiality of the information. Trade secret law also might be 44 See generally, Mark Lemley (1995)
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From page 63... ...
Supreme Court decision in International News Service v. Associated Press.50 In that case, a news wire service appropriated the dispatches of a competing service from published newspapers on the East Coast and published them simultaneously and in direct competition with the originating service on the West Coast.
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From page 64... ...
However, nothing prevents Congress from developing a minimalist form of statutory protection that builds on this foundation. Technological Protections The danger of database misappropriation can be mitigated with increasing efficiency by technologies that help enforce the terms of licensing contracts, or that enable the rights holder to keep the database as a trade secret while also providing access to subsets of data at arm's length.53 A number of technological innovations have been developed to provide venous forms of secunty, privacy protection, and intellectual property management.
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From page 65... ...
ACCESS TO AND PROTECTIONS FOR DATABASES 65 TABLE 3.1 Summary of Technological Approaches to Protection of Databases Approach What It Does Domain of Use Limitations Encryption Codes information so Any digital data; Protection vanishes that a secret key is protects data during when data decrypted for needed in order to storage and use; strong security read it transmission required for safeguarding keys Watermarking Embeds covert Digital photos, music, Can be easy to remove tracing or identifying text, and databases or tamper with; may information confound data merging Download Limits amount of Currently deployed; Presents only a weak limitations data that can be discourages wholesale, barrier to a determined downloaded at one automatic downloading adversary time or from one site of databases from the Web Database Classifies data in a Intelligence and More relevant to online access control database into different business organizations databases than to offline levels or groups for in which individuals or scientific databases, or access, and limits use different groups have databases of more based on agreed-to access to different general interest set of rules portions of a database according to job function or need to know Hardware-based Enforces a digital High-security systems Not widely deployed; trusted system contract that governs used mainly in military inexpensive hardware fees for and uses of and intelligence augmentation provides digital works applications only minimal support; outstanding legal issues about liability and enforceability of digital contracts Software-based Supports same In trial use for Vulnerable to being trusted system functions as distribution of video, disabled by simple hardware-based music, and documents means; subject to trusted systems, wide-scale system except that support failure triggered by is provided only computer viruses by software
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From page 66... ...
The term now covers a wide range of technologies for embedding information in digital files and rendered works, including text, pictures, and audio. As a technique for intellectual property protection, watermarks carry information that identifies a work or provides a means of tracing its purchaser or user.
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From page 67... ...
For example, they support pay-per-view and subscription viewing of satellite television services. Software and hardware for distributing music via trusted systems are in early prototyping and testing stages, and systems supporting digital network document and software publishing are in limited use on personal computers and in "electronic books." Although trusted systems for database access could be developed, such currently available technologies possess minimal security and control measures.
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From page 68... ...
A potentially effective technological approach appears to be the use of trusted systems, with digital contracts that specify appropriate terms and conditions. These systems would use encryption technology for protecting databases during storage or communication, watermark technologies to enable tracing the source of pirated copies when such theft occurs, and database access controls and query governors to flexibly control database access.
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From page 69... ...
The joint effort of the original public-data collector and commercial database value-adder and vendor accomplished the twin goals of enhanced data quality and wide dissemination at a reasonable price. Most important, in the context of this report, this broad distribution of data was achieved without statutory database protection.
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From page 70... ...
Database Directive that is particularly relevant to the present discussion, since it has been cited by commentators58 as well as by congressional legislators59 as a major driver for the adoption of a similar legal regime in the United States (see Appendix D for the full text of the directive)
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From page 71... ...
Directive subjects a research user of, say, a chemical handbook, to a starkly different situation than that experienced under traditional copyright law under the print paradigm. Table 3.2 provides a summary comparison of research user rights under these two legal regimes.70 The net result of unrestricted licensing coupled with strong statutory database protection is that the most borderline of all the objects of protection under intellectual property law raw or factual data, whether S&T or any other paradoxically receives the strongest scope of protection available from any intellectual property regime except, perhaps, patent law.71 The committee believes that the adoption of a law such as the E.U.
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From page 72... ...
5. During the period of protection, user rights depend on the terms of the license supported by the new property right; database would not enter the public domain for at least 15 years (and in Europe possibly never if the rights holder continues to invest in maintenance or updates of a dynamic database)
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