August 18, 1998

HELP FROM AN UNEXPECTED QUARTER FOR THE PUBLIC RIGHT TO INFORMATION

by Andy Oram
American Reporter Correspondent

CAMBRIDGE, MASS.—When Congress decided to give publishers an ownership right to collections of facts—so-called “database protection,” or the Collections of Information Antipiracy Act—they were faced by a wide span of opposition from librarians to scientists to intellectual property lawyers. Recent documents show that even the US. Departments of Justice and Commerce have qualms about the bill.

Administration concerns over the database bill might come as a surprise. Where intellectual property is concerned, the administration has always been found on the side of the big guys: movie studios, software manufacturers, music publishers, and so forth. And in the case of the Collections of Information Antipiracy Act, some of the big guys weighing in are really big—the American Medical Association and Lexis-Nexis, for instance—and they strongly support the bill.

But now comes an August 4 letter from Andrew J. Pincus, General Counsel at the U.S. Department of Commerce, to the Senator Leahy on the Judiciary Committee. The letter expresses concerns that the bill “does not ensure that legitimate non-commercial research and educational activities are not disrupted” and that a key definition “too easily exposes legitimate business practices to substantial liability.”

So in layperson’s terms, the bill may hurt ordinary people who were using databases in everyday activities like scientific research. The bill is too broadly drawn and may be used by greedy publishers to require more sales than they are now entitled too.

More broadly, “The Department of Justice has serious constitutional concerns that the First Amendment restricts Congress’s ability to enact legislation such as H.R. 2652.” Mr. Pincus does not expand on this suggestion, but backing comes from another Administration letter—this one dated July 28 and coming from the Department of Justice. (I found it on the Web site of the leading research organization in the computer field, the Association for Computing Machinery, after hearing about it from a email list.)

The constitutional argument is essentially that people have a First Amendment right to disseminate facts. According to the Department of Justice letter, the bill, “by providing protection for facts, raises serious First Amendment concerns. It would restrict the ability of persons to use and disseminate factual material that are not protected by copyright, and it arguable would do so even in circumstances where the copyright law would not protect creative expression.” The intellectual property clause of the Constitution may also impinge on the bill.

What is the cause of all this fuss? The Collections of Information Antipiracy Act makes it a crime to reproduce facts that come from a commercial database. It creates a new kind of ownership going far beyond copyright, which controls only the author’s “expression” and not his or her facts.

The bill is very vague about how much copying can trigger arrest and punishment. If the amount of copying is “substantial” (a term that the framers of the bill explicitly refused to define), a person may be liable. Anything that can harm the “potential market” for a database is culpable.

The bill began as a purely domestic effort and was fought effectively at first by public interest groups concerned with research and education. They pointed out that the database industry is growing by leaps and bounds and has no evidence that piracy is hurting their profits.

Congressional support for the bill swelled after database manufacturers inserted a similar right into a European Union directive. Now American companies are worried that they’ll lose protection for their compilations in Europe, unless laws are passed here creating the new right.

According to Mr. Pincus, Commerce Department interest in the database issue started with a section of a key Administration policy paper, A Framework for Global Electronic Commerce. Released over a year ago, the paper covers the database controversy in a few non-committal paragraphs, saying “it is clear that more discussion of the need for and the nature of such protection is necessary…The Administration will seek additional input from, among others, the scientific, library, and academic communities and the commercial sector, in order to develop U.S. policy with respect to sui generis database protection.”

The letters from the Departments of Commerce and Justice echo the criticisms of the public-interest community, and often quote from legal articles written during their fight against the bill. The concern that it is overly broad, that infractions are poorly defined, that “fair use” is in danger—in all these particulars the Administration implicitly backs the public-interest critics of the bill.

When bill was finally passed on August 4 by the House, it was through a last-minute addition to another: the Digital Millennium Copyright Act, a bill that raises its own concerns and questions. The House version, however, has to be harmonized with a Senate version of the copyright bill, so there is time for change.

The copyright provisions of the Digital Millennium Copyright Act have evolved beneficially over time in response to public-interest pressure. The bill is much more to the liking of the research and information communities than when it was first introduced. Now that the biggest of the big guys—the Clinton Administration—has raised concerns over the database portion, perhaps that will be ameliorated as well.


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