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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Appendix C: Raw Knowledge: Protecting Technical Databases for Science and Industry
Appendix C: Raw Knowledge: Protecting Technical Databases for Science and Industry
Pages 337-376
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From page 337... ...
Please note that a number of exhibits were prepared as attachments to this paper; these exhibits are available for viewing in the National Research Council's Public Access Records Office.
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This was followed by the European Union's (E.U.) 1996 Directive on Databases, which required member countries to expand their statutory protection of databases.
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"unfair competition" schemes that would examine the need for protection on a case-by-case basis, and (3) so-called sui generis protection that would give database owners strong property rights modeled on the E.U.
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search software. For example, many of the numerical data and directory products combined public-domain data with advanced software for making customer lists and address labels or performing searches.
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o Compilations of Two or More Public Domain Databases 6 Directory and Network Data that Identify Community Members to Each Other and/or the Public o Government and 2 education Commercial Provider Access provided without charge Commercial Provider: Portions of data restricted to users who have purchased passwords Commercial Provider: 0 6 o o 40 o o o 4 7 8 3 o 18 3 Finally, Table C.2 is a stark reminder that not all database providers want protection. This is trivially true for the enthusiast, government, and education providers whose missions are heavily slanted toward dissemination.
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Table C.3 extends the previous discussion to the sciences by summarizing online and CD-ROM databases offered by the University of California (UC) at Berkeley Physics Library and by the results of a request to the Yahoo physics search engine for the word "database."9 Because of their greater volume, the UC Berkeley and Yahoo resources for engineering are listed separately.
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Directory and Network Data, that Identify Community Members to Enthusiast 0 4 0 Government and education 0 18 Commercialprovider/searchonly 0 3 0 Commercial provider/portions of data 0 ~ 10 0 restricted to users who have purchased passwords. Commercial "public service" provider 2 3 12 Commercial database limited to provider's own products Commercial database offered at no charge to sell enhanced or CD-ROM versions of the same data and/or related products Commercial database paid for by advertising 0 4 and/or selling right to post items on a public bulletin board o o 8 4 o o o
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continues to spend approximately $4 million per year to maintain, update, edit, and disseminate nuclear science databases.~3 Approximately $800,000 of this is spent to support a group at Lawrence Berkeley Laboratory (LBL) whose principal product is the Table of Isotopes.
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Elsevier Science's search software permits users to search multiple journals at once. Although old print journals never had enough space to include full data sets, the advent of online journals has effectively removed this constraint.
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create software search tools that are not only powerful but also flexible enough to let researchers study the data in unanticipated ways.
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However, even nonproprietary databases have been cleaned and standardized to support Incyte's advanced search software.3~ Incyte also develops custom databases for individual clients; these are typically resold to other companies after an initial period of exclusivity. Another private company, Celera Genom~cs, recently joined the ranks of Human Genome Sciences and Incyte.
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Because of their long-standing ties to industry, chemists tend to provide a favorable environment for new commercial databases.34 Private sector databases include the Registry of Toxic Effects of Chemical Substances (full text) , Chemical Abstracts Service (bibliography)
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The examples include both custom databases prepared for a single customer and sem~custom databases prepared for a relatively small community.38 In the limit where only one customer wants to acquire a particular database, protection against third parties is virtually automatic. More generally, existing law allows custom and sem~custom database owners to limit each customer's right to use anchor disclose the information to others.
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EXISTING AND PROPOSED LAW The Limits of Federal Copyright Protection For most of the 20th century, the extent to which databases were or were not protected was uncertain. The federal copyright and patent statutes seemed to be exclusive.
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Instead, the case remained in a kind of legal limbo. In the words of one commentator, Having been born over the objection of powerful dissents authored by Justices Holmes and Brandeis and thereafter subjected to the disapproval of Judge Learned Hand, it is not surprising that the INS case was "often confined strictly to its facts." The upshot has been recognition of a claim where the defendant's commercial exploitation was likely to destroy its value but otherwise to allow the defendant to compete notwithstanding the advantage gained by use of the plaintiff's work.53 The Feist54 Case The modern era of database law opened with the Supreme Court's 1991 decision in Feist Publications, Inc v Rural Telephone Service Co.55 The case stemmed from a publisher's attempt to copy a local telephone company's printed directories.56 Starting from the twin propositions that "facts are not copyrightable" but that "compilations generally are,"57 the Court explained that creating a telephone book in the usual format lacked the "minimal degree of creativity" required for copyright protection under the U.S.
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Because the Second Circuit carefully restricted its discussion to "time sensitive" information, the decision does not currently include databases.72 Nevertheless, the fact that the Second Circuit continues to take unfair competition
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enhanced C`relational" search capabilities would all qualify for "compilation" protection under the copyright laws. The smaller, less elaborate data sets submitted in connection with individual papers would probably also qualify, although this presents a closer question.73 At least one publisher (Elsevier Science)
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In March 1996, the Council of the European Union issued the Directive on the Legal Protection of Databases.79 By its terms, the E.U. Directive applies to any "collection of independent works, data, or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means."~° The E.U.
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2652 was dropped in Conference Committee, largely because of protests from the science and engineering community, but will be reintroduced this year. The bill can be broadly described as an implementation statute designed to meet the European Union's demands.
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the European Union's demands by extending the term of protection from 15 to 25 years, and failing to take full advantage of the E.U. Directive's exemption for not-for-profit copying and/or fair use for teaching and scientific research.
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Statutory protection should not be extended to databases lightly or for no reason at all. Potentially, the best reason to enact protection would be to encourage investors to create new databases that do not currently exist.~7 The chances that such an incentive would actually work is discussed as Issue I
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Example 7 on biotechnology above shows how secrecy can end up restricting databases to a handful of firms willing to pay multimillion-dollar license fees. But would statutory protection have led to a different result?
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Even in biotechnology, there is little indication that database owners would actually give up secrecy if statutory protection became available. Pitfalls and Drawbacks Issue 3: Will Protecting First-generation Databases Discourage the Creation of Subsequent Products?
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Issue 4: Should Statutory Protection Include Exemptions for Socially Useful Copying? Exemptions for Noncommercial Use.
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unless firms are able to buy licenses from one another. Since public databases do not generate the revenues needed to pay license fees, statutory protection imposes substantial (albeit inadvertent)
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This approach is unnecessary if database protection is simply thought of as the default choice for products that do not meet the relatively high standards of copyright or patent protection. Conversely, the NRC study committee should be deeply suspicious of any proposal that would afford database owners any right that is not simultaneously available to copyright or patent owners.
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Furthermore, the section on limits of federal copyright law, in Part II, has shown that most scientific databases display sufficient creativity to qualify for copyright protection, even after Feist. This probably affords a modest amount of protection despite the fact that competitors are still free to copy data if they rearrange them creatively.
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Option 2: Improved Unfair Competition Law . ~ This is the first of two alternative reform measures advocated by Reichman and Samuelson.
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Presumably, the periods chosen should be related to the typical time that database providers need to recoup their investments. However, there are at least two types of investments: the creation of the underlying database (case I)
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solution, Reichman and samuelson argue that all should be protected by automatic licensing according to a predetermined fee schedule.~4i Although they recognize that automatic licensing schemes have met with mixed reviews in the past, Reichman and Samuelson believe that these criticisms could be ameliorated by (~) using an industry-based "collection society" to set baseline license fees and (2)
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CONCLUSION The principal argument for statutory protection is that firms do not create enough databases because doing would require a large up-front cost that is not currently protected. However, this paper has found little evidence that lack of statutory protection has prevented the creation of new products.
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This report shows that the reality is much more subtle. The January 14-15, 1999, NRC Workshop on Promoting Access to Scientific and Technical Data for the Public Interest represents a unique opportunity to deepen and extend this understanding.
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National Academy Press, Washington, D.C. Notes from the November 25, 1998 interview with Karen Hunter, Elsevier Science; notes from November 10, 1998 interview with Richard B
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3 The best example of this is a company called Silver Platter. Silver Platter's nuclear databases are discussed in my interview with Richard Firestone of Lawrence Berkeley National Laboratory (see Exhibit 3~.
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}7 Reed Elsevier also publishes many nonscientific databases, including The Official Airline Guide. ~8 Elsevier Science points out that these policies are broadly similar to those of many other journal publishers, including Academic Press, the American Chemical Society, the American Institute of Physics, and the American Geophysical Union.
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For example, Tyson and Sherry argue that telephone book data should not be protected because they are generated "with no additional effort" in the course of operating a publicly sanctioned monopoly. Laura D' Andrea Tyson and Edward Sherry, Statutory Protection for Databases: Economic and Public Policy Issues (1997)
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1997~. 72 In theory, database owners could argue that database updates are time-sensitive in an economic sense and should therefore be protected.
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99 The Digital Millennium Copyright Act of 1998 was subsequently enacted as Public Law 105-304.
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Suffice it to say here that strong normative arguments exist against rewarding inventors who knew in advance that certain types of activity would not be compensated. ~8 Karen Hunter of Elsevier Science did report that her company had turned down nonscientific database products because it was afraid of copying.
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145-146. This is conceptually identical to sui generis protection (Option 3)
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