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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12 Promoting Access to and Use of Government-Sector Scientific and Technical Data—An Assessment of Legal and Policy Options
12 Promoting Access to and Use of Government-Sector Scientific and Technical Data—An Assessment of Legal and Policy Options
Pages 251-281
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From page 251... ...
Box 12.~: Issues for the Discussion Session on Promoting Access to and Use of Government Scientific and Technical Data An Assessment of Legal and Policy Options i. Assuming that government data will remain exempt from intellectual property rights (IPR)
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Question number I: Assuming that government data will remain exempt from copyright or proposed database legislation protection, what should be the scope of that exemption for databases created outside of government, with government funding? ~ would like to make it clear that when the term "government" is used here, it refers to the federal government and federal agency policies.
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From page 253... ...
The exemption for government information and for information compiled under exclusive contract has been in all the United States database protection proposals from the start and has been a consistent difference between the European community and us. One of the things T want to make clear is that what the proponents of database protection are trying to protect is value-added products in which the private sector takes government information and, on its own, adds value.
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~ would like to remark that we can see very clearly that there are intended consequences of database protection. Database protection legislation is intended to make users of information pay more, pay more often, and pay for a longer period of time for access to information.
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As publishers, we create our products essentially for the user, and we want the products to be used however the user needs to use them. The database protection is to prohibit unauthorized uses that are going to cause harm for the market of the database.
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Trademark is created under the commerce clause. So, any constitutional question would be analogous to what would be brought up under the commerce clause there.
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There was also a substantiality element in database protection, which is analogous to fair use. Even though it didn't look exactly like fair use, there were fair-use type elements.
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If it is no longer available from the government source, then the government information-should be made available by the private sector, but not the private-sector information. If the database is merged, which is often the case, in such a way that you can't distinguish what are government data and what are not, again, I maintain that if the database was created under government contract, it should be in the public domain.
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MR. ONSRUD: We are really off the issue of government databases.
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Then, in essence, they combine and rearrange government data and now provide that as a service out to the general public. Then there is this exclusive arrangement.
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MR. ONSRUD: This is Question ic, which asks, Under what terms and conditions should the databases created outside government with government funding be made available?
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I think government information should also be provided to the private sector according to what the Paperwork Reduction Act suggests for the marginal cost, or the cost of dissemination.
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For example, we have a commercial company that takes government data and incorporates them into their database. The question is, Are those original data still considered to be in the public domain?
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Whatever exemptions exist for government data produced by the government, by government employees, or by government contractors, should be uniform throughout. Then we don't have any doubts as to what we are dealing with.
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That is not being implemented and there is a great deal of disagreement between local and state agencies and federal agencies on the access to government data.
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DR. SCHOOLMAN: If ~ can make one point, the published data in the scenario you gave, under-the circumstances of the electronic journal as opposed to the print journal, the electronic journal would, under the definitions that are given in the database protection activity, be a database.
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MR. MASSANT: Our view would be that if there is any government funding for the creation of that data set, then it shouldn't be protected under the database protection state, local, international, whatever it may be.
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You have public and proprietary data in the human genome database, and you have public and private people dipping in and out on a regular basis, which makes the database as robust and useful and effective as it is. Is that the kind of example that you are thinking of?
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~ think there is a status quo relationship in the government policy even before we had these database legislation discussions.
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Any commercial product that is developed by any of our licensees of the UMES cannot include in any of the proprietary databases without negotiations with the proprietary owner. It is a perfectly straightforward arrangement and the National Library of Medicine has no great difficulty in implementing it.
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For instance, the United Kingdom claims a crown copyright and, of course, they would claim the same kind of right on databases. This may be an opportunity, as we go forward at some point, hopefully, in the World Intellectual Property Organization with discussions for concluding a database protection treaty, that the United States will be pushing for open access to government information and exemptions from protection for government information.
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If the government data are exempt from the scope of the proposed database legislation, should databases created in universities also be exempt?
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Couldn't there be some databases that come out of a state university but are not funded by government funding? ~ guess there was an assumption that all state university employees are essentially government employees.
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MS. ADLER: To follow on what Ken was saying, many of those points were brought out in the three memos that you heard Justin Hughes and others allude to yesterday, one from the Federal Trade Commission (FrC)
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As you recall, in some of the negotiations, the notion of extracting one piece of information from a database did not trigger a liability, but two could. That is two pieces of factual information could be considered "potentially substantial." In terms of the database, that
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From page 276... ...
for the Congressional Information Service, which is one of the Reed Elsevier companies, 95 percent of the market is the academic market. 11- it is used for scholarly academic purposes, if it is released into that market, it is going to eliminate the entire market for that publication.
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In some cases it may be that a database is created exclusively for an academic market. If that second database is then redistributed in such a way that 50 percent of it causes the academic market to fee} that they don't need that first database any more because they now have this bigger database into which that smaller database has been integrated, that is a problem.
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MR. MASSANT: I think in database protection the model is somewhat flipped, in which the burden is on the publisher to show that there was harm.
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The Supreme Court has repeatedly stated that information is a public good, and the purpose of the copyright law is to provide an incentive for people to create stuff so that public good can become available down the road. Recognizing here that we are talking about potentially providing more protection for stuff that doesn't meet the constitutional standard for copyright, the question is not how do we analogize to the real property model, but rather, how do we stay true to the Constitution with regard to intellectual property policy and, in effect, maximize the creation of information and the public good that comes from it.
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MR. DE GlUSTI: ~ must say, the database protection is of a short duration, unlike copyright, which offers protection for life plus 70 years now, or 90 some~years, and 120 or whichever is shorter for works for hire.
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That was the very issue that the FTC saw, as many of us did, as perpetual protection for the database. There was a provision it was not as strong as we would hope, but it was moving in the right direction included in the Senate negotiations for deposit at the CopYnght Office.
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