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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10 A Strong Property Rights Model for Protecting Databases
10 A Strong Property Rights Model for Protecting Databases
Pages 187-217
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From page 187... ...
The panelists are Peter Jaszi, professor at the American University School of Law: Robert Brammer from TASC: David Fulker from the Universitv Corooration for Atmospheric Kesearch; Kenneth tiadeen, formerly with the National oceanic and Atmospheric Administration's (NOAA's) National Climatic Data Center; James Neal from the Johns Hopkins Universitv Librarv: Ferns Webster from the Universitv of Delaware.
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From page 188... ...
The critical shared characteristic of these two approaches is that however they may be styled and however their goals and objectives may be stated, their effect is similar. In the case of the sui generis model, the stated goal or objective is simply to provide intellectual property protection for compilations of data as such, and in the case of the so-called "misappropriation" approach, the stated objective is to provide protection for the investment that resides in or that goes into such compilations of data.
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From page 189... ...
If the test of liability under such a statute is, for example, whether the use of information from protected compilation harms the actual or potential market for that compilation, then any kind of use-a commercial use, noncommercial use, personal use, scientific use, educational use-may well fall within the scope of that broad prohibition. So it seems to me that the challenge for this session today, given the task we have been assigned (which is to assume a congressional choice to institute legislation along this model)
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From page 190... ...
Peter Jaszi's point is that in the legislation that was introduced by the House, the definition of harm, from the standpoint of many of the neonIe who opposed the legislation, was so minimal that it virtually amounted to sui generis protection. T think, therefore, that the question really is, What kinds of modifications to either sui generis or to unfair competition are necessary in order to accommodate legitimate interests that might he adverseIv affected?
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From page 191... ...
Another problem was the potential market problem. Once you move into the unfair competition model, the harm to the actual market of course is provable.
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From page 192... ...
We began the discussion by characterizing what in fact constitutes the strong property rights model. We made comparisons between the European model and H.R.
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From page 193... ...
MR. UHEIR: As we discussed at the beginning of this session, the Coble bill was a closer approximation of a sui generis property rights model than a true misappropriation or unfair competition model.
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From page 194... ...
MR. lASZI: As ~ said before ~ wouldn't draw a bright line between the significance of the harm factor in a sui generis approach, where it is technically not an element of the law, and the role that harm plays in the global approach, for example, where any harm to an actual or potential market triggers liability, because although there is clearly a definitional difference, harm is required in the latter case and not required in the former case.
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From page 195... ...
~ think in principle there is, as you said, not a big deal to be made out of the difference between harm in the sui generis approach and harm in the unfair competition approach, but in very practical terms from the viewpoint of a practicing lawyer advising clients and dealing with some expert witnesses from the other side, there is a big difference between the plaintiff having to demonstrate harm as a part of accomplishing its case and the defendant having to prove the absence of harm, for example, as an element of its case. There is a big difference in motion practice.
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From page 196... ...
~ think we have fairly well broadly characterized what the salient provisions are of a strong property rights model at this point, and unless there are any further clarifying questions would like to move on to the more specific discussion of the issues and, also, to bring in the perspective of the data providers and users in this context. One of the things we want to do is to look at what the status quo is in terms of legal protection and how this additional protection would alter the activities of the data providers and users.
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From page 197... ...
The big issue that was on the table with European government data providers was that a lot of their data were leaking out onto the Internet. Once the data are it is out there, they are out there, and what the Europeans had wanted the U.S.
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From page 198... ...
about it. The other aspect of that question is, If our government were to deny protection under this new law to European government databases, would that be such a substantial incompatibility in terms of the E.U.
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From page 199... ...
MR. UWIR: There is also the issue of state and local government data, which is likely to change the status quo if something like the Coble bill is adopted.
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From page 200... ...
So it is of some concern to me that the sui generis kind of protection seems to make that more difficult. The other point ~ would make in regard to the overall effects of this regime is that if it would allow you to essentially protect the database for an indefinite period of time, ~ think that could be quite harmful.
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From page 201... ...
That was the solution promoted by Senator Hatch.
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From page 202... ...
MR. BAUMGARTEN: ~ just think we should clarify one or two things about the duration, first of all particularly under the unfair competition model that is being discussed down the hall, but, also, ~ think under database.
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From page 203... ...
There also is this issue of liability or harm, which ~ am assuming would be attached to this misuse of data as structured in our current law versus the sui generis version. This is the issue of liability or harm associated with the interpretation of the data.
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From page 204... ...
government has adopted of making the government data freely available is a good thing. Sometimes ~ think that our government might be a little more organized about it, pay a little more attention to this and that, but by and large there are a lot more pluses than minuses, and am not going to argue with it.
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From page 205... ...
From the international point of view, I believe that strong property rights legislation in the United States would inevitably unleash a chain reaction in WIPO so that we would end up with a WIPO treaty that is not too dissimilar from the E.U. Directive.
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From page 206... ...
The E.U. Directive allows exceptions for purposes of illustration for education and for scientific research, which raises some ambiguities as to what is meant by "an illustration." Discussions with individuals in Europe, in Brussels with the European Union and so forth, are not providing any clarification as to what it really means.
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From page 207... ...
One of the concerns ~ brought to the discussions in Geneva was how to take concepts which are well ingrained in the American tradition, in terms of our constitutionally based copyright law as regards our fair-use traditions, and try to harmonize those with other legal traditions that don't have those same values. For example, members of the public-interest delegation from the United States worked very hard to get the concept of fair use implemented into the WIPO digital copynght treaty.
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From page 208... ...
Yes, we have lawyers on our campuses and in some cases we even have copyright lawyers on our campuses. Sometimes we wish we had copyright lawyers from other campuses on our campuses, but we very often find ourselves in an application mode trying to help faculty and students understand the balance that exists within copyright.
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From page 209... ...
There have been changes in the definition of database. There have been substantial changes in the definition of potential for example, in the Senate version that Ed Dam~ch was deeply involved with, which included maybe even more substantial changes in the concept of potential market than the proprietors initially thought they would be able to accept.
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From page 210... ...
If clarity means knowing specifically what you can do in individual cases then that is very hard. Also, ~ have been puzzled over the years by the library community because ~ used to do a lot of antilibrary work for the publishing community.
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From page 211... ...
~ certainly agree with Jon Baumgarten on the license issue. We have worked very hard to make our license agreements clear.
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From page 212... ...
~ am not sure that the tension between wanting specificity on the one hand and wanting generalized fair-use language on the other hand is quite the inconsistency that Jon Baumgarten suggests. It seems to me that it is perfectly consistent to say that one wants greater specificity with respect to definition, that one wants greater specificity with respect to the description of the subject matter, and that one wants greater specificity with respect to the standard of harmwhether or not that specificity can in fact be achieved and at the same time want a set of provisions that in some way tracks the generalized fair-use provisions which, on the whole, have been rather successful in the context of copyright law.
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From page 213... ...
~ think that it is inevitable that if strong-form data protection were enacted without adequate provisions for exceptions and limitations, one would see progressively greater application of competition law principles in this area and one would probably eventually see the growth of additional judicial compulsory
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From page 214... ...
seeing the word "database" would think of something that was a collection of discrete facts, and would go in that direction, rather than collection of information, which would tempt them to call it all kinds of other things. ~ don't know if it would have achieved that, but that is what we did, and actually would like to ask Jon Baumgarten, since he has a copy of the Coble bill, if Congressman Coble went the route of calling it a database or did he stick with collection of information?
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From page 215... ...
DR. NEAL: ~ think one of the issues in the library community is that ~ am spending 20 percent of my budget now on electronic information, which our vernacular has defined as databases, and as that progresses over time and 10 years from now ~ am spending 80 percent of my budget on electronic information databases, what set of laws will apply, the copyright law or the database bill?
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From page 216... ...
MR. UHLIR: Both of these questions are being dealt with in the government data breakout session.
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From page 217... ...
As Peter Jaszi pointed out, you have to view this along with the implications, rather than just the specifics of the restrictive legislation. ~ would like to have heard a discussion of some novel ways to mitigate some of the impacts of these new laws.
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