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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11 An Unfair Competition Model for Protecting Databases
11 An Unfair Competition Model for Protecting Databases
Pages 218-250
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From page 218... ...
MR. KAHTN: I am Brian Kahin with the White House Office of Science and Technology Policy, and I have been working with Chris Kelly and Justin Hughes and others within the administration on this issue.
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From page 219... ...
I work with intellectual property issues at the Antitrust Division of the Justice Department, where I have worked with Richard Gilbert and learned a lot from him, and I have been working with Brian Kahin and Justin Hughes on these issues for the last year and one-half or so.
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From page 220... ...
7. Are there any special provisions needed for access to and use of government data incorporated into pnvately produced databases?
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From page 221... ...
or a property rights model. The Coble bill, as some of you may know, allowed a database owner to be protected both in the actual markets in which they were engaged and also in any potential markets; and when you open it to potential market, which means any market discovered in the future, as to how this database might be economically exploited, you essentially end up with a property or very close to a property rights bill.
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From page 222... ...
In any case, even with the unfair competition model, my concern is conveyed with the following scenario: ~ have created a new
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From page 223... ...
As long as the protection provided to the database vendor is very narrow and is specified, as Harvey Perlman descnbed, where it says, "I am protecting only that which has already been created, and ~ am not, in fact, protecting against future possibilities that have not yet been implemented," then ~ don't have much of a problem. What ~ found formidable was the idea that someone in retrospect could say, "Oh, that derivative database included some of my data, and have been intending to do that as well." How does the provider document that they had that idea?
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From page 224... ...
In terms of this specific issue about misappropriation of data, this would not affect our organization because we go to the end user directly and collect sequence data from the end user. There is one area that would be a potential danger ~ think, which was alluded to yesterday, and that is in terms of electronic publishing where journals may be completely in the electronic realm and the data that support the underlying article may be part of that electronic publication, and the publisher may retain rights to all of the background or underlying data.
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From page 225... ...
You characterized software as something people can go out and duplicate, but they cannot go out and duplicate it. They can reverse engineer it under certain conditions, but copyright protection for software does provide some viable protection of the investment, and there is a coterie of people all over this building and over the office of the U.S.
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From page 226... ...
The Europeans said 15 years; the Americans came back and said, "We have to match the Europeans," so they proposed 25 years. ~ think there is a question about how long it takes a database owner from an economic point of view to recover their investment, and certainly for the American companies isn't anything like a time horizon of 15 or 25 years.
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From page 227... ...
Two of them reply to Chris Overton's comments. ~ don't believe that even the Coble bill that was introduced and didn't go any place prohibits or requires identification of each individual part of the database.
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From page 228... ...
PARTICIPANT: If ~ may, just two other answers to that question, especially the case where the underlying data were denved commercially, not with public funds. One is that ~ think one can argue that the raw data have little use.
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From page 229... ...
I think one of the distinguishing features between scientific databases and most other commercial databases I can imagine, like the mattress database or furniture database, is that we take scientific data and we build knowledge out of those data. First you take these raw data.
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From page 230... ...
PARTICIPANT: ~ keep making the distinction between commercial databases, which are generated with commercial funds, versus databases that are generated with government funding in some way, whether it be by grant or CRADA or whatever means, because ~ think that there should be no question that if Celera has spent $300 million, ~ should not be able to have access to that database and create a derivative database, which ~ then turn around and sell without negotiating the appropriate agreement with Celera that says that ~ have the right to do that. But if, in fact, ~ have the legal right to access any information that has been generated by a government grant, then there should not be any restrictions on the way ~ utilize that information in the creation of derivative databases, and ~ do much the same as what Chris Overton is doing.
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From page 231... ...
Baker duplicates the Chinese restaurant section and sells it. ~ still think that should be prohibited; you can say that even though it is a part of the overall database, the listing of Chinese restaurants within that overall database is another database, and so that smaller database has been wholly appropriated by Baker.
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From page 232... ...
Baker copies the Chinese restaurant section and then he merges it into a database with Chinese restaurants from Virginia and Maryland, but he doesn't break it out as separate chapters. He really has the directory integrated as a whole and does an overall alphabetical listing where maybe he breaks it down by region of China in terms of Hunan, Szechwan, and so forth so that he has merged it as opposed to just having it as a stand-alone chapter.
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From page 233... ...
So then what? That is a derived database that you have added value to and still have the same data set associated with it.
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From page 234... ...
1997~] expressly codified economic considerations, and it tells the judge, "Here you need to think about public policy in this particular instance and come up with the best economic rule." ~ think we need to remember that if we are going to discuss legal reasoning as an economic approach, the great strength of these unfair competition approaches is precisely that they tell the court to go out and consider the things that we cannot make a general rule for, and ~ think that is a very strong aspect.
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From page 235... ...
Take, for example, the Chinese restaurant subdivision of the directory. There is an initial question of what the database is.
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From page 236... ...
However, it was made clear to us that two pieces of data very well could be qualitatively substantial and even quantitatively substantial. So with that analysis there is no question in my mind that the chapter dealing with Chinese restaurants within this bigger database of D.C.
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From page 237... ...
PARTICIPANT: Yes, and the second is the problem, which is just as vexing. Chris Overton has described situations where scientists create products that they share within a small community, which, from some commercial people's perspective, is taking away some market share or potential market share.
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From page 238... ...
So that everyone understands the framework, in the copyright world we have a wellunderstood system of fair use, and the question is whether or not as we move more and more toward licensed products and less and less toward physical copies of those products, which are subject to what is called the first-sale doctrine in copyright law, the owners of the copyrighted work can impose conditions on the use of the copyrighted work that go against the balance that the fair-use provisions bring into the copyright law. What Harvey Perlman is saying is that right now there is nothing to stop a database owner, particularly an online database owner, from imposing egregious terms, whatever terms they want in order to make the online database accessible.
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From page 239... ...
Now, ~ believe, even in a world where you are silent on that issue, if you had reasonable and permitted uses, this would put some brakes on the attempts to assert egregious terms and contracts because ~ as a commercial database vendor would then say, "Whoa, if ~ push the limit too far, he will take me into court, and ~ have a crap shoot as to whether or not the judge will say that this is an egregious contract under public policy terms, and ~ am not going to enforce it." So even if you don't say that these permitted uses and reasonable uses can be contracted around, if you built them into the law, you would be creating some soft protections against overreaching in the form of, again, transaction costs. The commercial database maker won't want to try it.
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From page 240... ...
What can't ~ do? So maybe there should be some pre-steps that database owners should have to do before they acquire any protection at all.
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From page 241... ...
Under an unfair competition model, a narrow protection model, for how long should a database proprietor have this kind of protection? PARTICIPANT: ~ cannot answer that question because what ~ find is in this discussion there are so many disparate kinds of databases.
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From page 242... ...
If one envisions a kind of narrow protection for databases built on market harm somehow defined, how would you go about approaching the problem of government data incorporated into a private database, and to what extent should they get the same protection; ~ think that is the issue, isn't it? To what extent should a publishing company be protected for grabbing all the federal court decisions or weather data?
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From page 243... ...
DR. OVERTON: One of the provisions ~ would like to see for government data is that even if they are sole source, all of the data have to be available to the scientific community in a cost-effective form.
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From page 244... ...
And regardless of the relationship between the database owner now and the government, should the rights in that database be more restricted because it contains government data?
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From page 245... ...
In five years a person is going to have to be crazy to pay a newspaper $40 for a classified ad when you can go to the eBaY Web site for a quarter." Why should we put a law in place that will preserve an antiquated way of doing business and impede a better way of doing business? PARTICIPANT: If we do arrive at a world where West gets everything off the Internet, as you can get Michigan court opinions now, then Matthew Bender won't take Federal Second and Federal Third Court decisions from West, they'll get it off the Internet.
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From page 246... ...
That issue has been confronted before the database question in the Bayh-Dole Act for patents, and basically they bought the Franklin stove argument in order to get the universities to create the licensing infrastructure to get those things out in the public domain.
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From page 247... ...
PARTICIPANT: No. PARTICIPANT: All right, if it is not, then it has some market value, and someone else takes the 1990 outdated phone book and uses it to penetrate the residual market that you think still exists, would that violate the act?
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From page 248... ...
PARTICIPANT: You cannot confuse the value left in the 1990 phone book with whether there is enough value in doing the update for 1991, which the gentleman who owns the 1990 phone book is going to do in 1991 whether that competing product comes out or not. Phone books are a good example; the 1990 phone book may be useful for a lot of purposes but you have got to believe that the phone company is still going to put out the 1991 phone book.
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From page 249... ...
It is going to be restricted. PARTICIPANT: And ~ assume that under the Coble bill it would be prohibited assuming phone books were included.
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From page 250... ...
~ have come up with some completely new use for this database, but it depends on my having access to all of the data in order to do that. PARTICIPANT: ~ think the argument could be under the Coble bill that those are potential markets, and they could argue that a potential market includes our licensing it for bizarre uses.
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