Proceedings of the Workshop on Promoting Access to Scientific and Technical Data for the Public Interest An Assessment of Policy Options (1999) / Chapter Skim
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6 Legal and Policy Issues
6 Legal and Policy Issues
Pages 122-137
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From page 122... ...
SUMMARY OVERVIEW OF EXISTING AND PROPOSED INTELLECTUAL PROPERTY RIGHTS REGIMES FOR DATABASES Marybeth Peters . This overview summarizes key elements of the following existing and proposed intellectual property regimes: the status quo (copyright, unfair competition law, contract law, technical protection)
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From page 123... ...
Contract Law Protects subject matter specified by contract, which may be a database. Technical Protection Available to protect databases in electronic form.
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From page 124... ...
Any substantial change, evaluated qualitatively or quantitatively, which would result in the database being considered to be a substantial new investment, qualifies the resulting database for its own term of protection. Unfair Competition/Misappropriation Mode} The Status Quo Copyright Fifteen years from the investment of resources that qualified the portion of the collection of information for protection that is extracted or used.
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From page 125... ...
(iii) nationals or residents of a third country, where comparable protection is provided in that country to European Community databases.
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Unfair Competition Law In the United States, state law. Contract Law In the United States, state law, with other countries recognizing contractual relations but applying own rules regarding choice of law and contract interpretation.
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From page 127... ...
Such extractions and/or reutilization may not conflict with normal exploitation of the database or unreasonably prejudice the legitimate interests of its maker. · Optional exceptions that may be enacted by European Community member states for the benefit of lawful users.
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Products or services incorporating a collection of information used to accomplish digital online communications. Relationship to Other Laws The Status Quo Copyright · Preempts equivalent state rights in protected subject matter.
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Specifically states no effect on antitrust laws, Communications Act, Securities Exchange Act, or Commodity Exchange Act. Remedies (Civil/Criminal)
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· Costs and attorneys' fees required where action brought in bad faith against a not-forprofit educational, scientific, or research institution, library, or archives. Criminal penalties.
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From page 131... ...
of how the government gathers data today. It is important because it speaks to the spins of enlightenment that guided the founding fathers and that ~ hope, and ~ think everyone in this room hopes still, guides federal policy in terms of gathering information, collecting information, and disseminating information.
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From page 132... ...
This summer, when the Administration was working on its own policy, or formulating its own viewpoint on the database issue, we had that very much in mind. A National Economic Council-led effort, which included Brian Kahin from the Office of Science and Technology Policy, Chris Kelly from the Justice Department, and several others of us, worked on formulating the Adm~nistration's policy on database protection issues and possible legislation.
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From page 133... ...
The Europeans have a clear model of data protection, or database protection, which they would like to foist upon the rest of that world. Part of that model includes the ability to create exclusionary rights over government data.
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From page 134... ...
When government grants are given to university people for the purpose of disseminating their findings, the Pincus letter to Senator Hatch indicated that exclusive rights would not be given to any outside or private companies. The question is, Why aren't the results of grants given the same sort of copyright exclusion?
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From page 135... ...
The fact that a court came out that way may mean that others don't bring lawsuits, because the likelihood of loss is out there with the opinion in the Eleventh Circuit. With regard to the Digital Millennium Copyright Act, ~ am not sure what the changed circumstances are, because the technological protection measure only goes to copyrightable works.
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From page 136... ...
Let me say that the problem with government capture is not only the behavior of the private entity, but also the behavior of the government. The situation we worry about is one where every federal agency is under budgetary pressures, and an agency decides not to concern itself with continuing to disseminate its information because a private corporation is disseminating that information.
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What everyone in this room needs to understand is that, at the World Intellectual Property Organization ¢WIPO) , the question of database protection is on the table.
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