November 11, 1997
CAMBRIDGE, MASS.—If you bought a CD-ROM of census information and published one fact from it in an academic paper, should you go to jail? What if you copied the whole CD and sold it as your own? Here’s a case that lies somewhere between the extremes: what if you extracted several thousand facts and used them to generate a chart in your paper?
Congress has been wrestling with these kinds of questions recently under pressure from large database providers who want to create a new intellectual property right to prevent copying. Nobody has a problem allowing the extraction of isolated facts. On the other side, most observers agree that the manufacturer should be protected against massive extractions by others to make a competing product. The hard part is drawing the line so as to prevent abuses by either side.
Databases used to be called compilations, and existed only as unwieldy tomes or microfilm on dusty library shelves. Then they moved to sleek, easy-to-copy CDs, and now are turning up on electronic networks where copying is even easier.
Vendors are worried by a 1991 Supreme Court decision (Feist Publications v. Rural Telephone Service Co.) that compilations are not protected from copying unless some creativity went into them. After all, facts cannot be protected from copying—if they could be, research and news reporting would come to a screeching halt. The criterion of creativity was just upheld by a court ruling against Warren Publishing, which accused Microdos Data Corporation of copying its compilation of information on cable TV stations. Yet the Copyright Office points out that it still copyrights most compilations, because they show sufficient originality.
Database vendors are not satisfied by copyright protection. They want an entirely new right—in legal terms, a sui generis right—that would let them sue or even criminally prosecute people who engage in what the companies consider inappropriate copying.
The vendors lost twice in 1996—once in the U.S. Congress and
once in the World Intellectual Property
Organization—but won once, in a European Union directive to
its member countries. Now the vendors are trying again in the U.S. to
create the sui generis right, in a bill called the
Major forces promoting the database bill include West Publishing, which prints court
citations in a format needed by every lawyer, by Lexis-Nexis, who provide many
collections of data including popular periodicals and legal
information, and by another group of organizations that formed the
Coalition Against Database Piracy. In opposition are arraigned a broad
range of scientists, librarians, and others engaged in research,
supported by respected legal scholars in the arena of digital
technology. Intellectual property disputes up to now have been settled through
civil suits. In introducing H.R. 2652, which includes criminal
penalties, representatives are showing a great deal of generosity to
database vendors. Now taxpayer funds must be spent on the police and
the prosecutors, the judges and the juries, to track down and punish
infringements. The same trends can be found in several other bills
currently in Congress, such as the No Electronic Theft
(NET) Act (passed by the House on November 6) and the WIPO
Copyright and Performances and Phonograms Treaty Implementation Act of
1997 (H.R. 2281 and S. 1121). Worries about the future of research would be much less intense if
supporters of the bill restricted their prosecutions to those who
release competing products. But they will not do that. Marybeth Peters, Registrar
of Copyrights, testifies that “non-competitive uses can
seriously harm the market for a database.” The CADP backs this
assertion with the claim that “commercial harm can be caused by
competitors and non-competitors alike, and one need not have a
commercial motive to inflict such market damage.” This naturally
leads professors and scientists to worry that they can be arrested just
for publishing a report based on facts from a database. So how much copying can trigger a prosecution? Database bills
merely distinguish between “substantial” copying, which
would become illegal, and “insubstantial” copying, which be
considered OK. Peters again says, “The term
‘substantial’…probably cannot be more precisely
defined in a statute.” So in short, Congress is proposing to create a right that never
existed before, with no expiration date, no clear boundaries, and
severe penalties for infraction. All of us should be worried. A
database can be anything—even a book or a Web site. H.R. 2652 allows non-profit educational, scientific, and research
institutions to use databases freely—but only if they do not
“harm the actual or potential market for the product or
service,” a broad phrase that brings the threat to them right
back. Luckily, a blanket exemption from the law is granted for news
reporting. Government agencies cannot use the law to restrict the use
of their information, but private companies that offer government
information—like West Publishing—can do so. Opponents of the bill point out that there is no evidence that
copying is hurting the database industry—which has sales in the
billions of dollars each year—and that many other mechanisms
exist for protecting databases, such as copyright law and contracts
between vendors and users. Law professors Paula Samuelson and
J.H. Reichman
suggest that the laws covering unfair competition could be applied. Interestingly enough, database vendors have plenty to worry
about—but not because of copying. With the spread of fast, robust
Internet connections, the premise for their industry is eroding. The
American Bar Association, for instance, recommended in July 1996 that
court citations be
offered online, making them much easier to find and research than
they are in books produced by West Publishing. As cable modems or other
technologies make it convenient to log in and surf the Internet, people
will cut out the middlemen and go directly to the sources of
information. The position of database vendors can be compared to companies that
set up “shopping malls” on the Web, like Jim Manzi’s
Industry.Net. The online malls
have failed because people find it easier to go directly to the
manufacturers’ or distributors’ Web sites. Database vendors are still delivering spices and silks on camel,
while the age of the Internet offers supersonic transport. But enough
data is still produced by private interests in a monopoly environment
that we need to protect the public and research community against
attempts to lock down information.
Editor, O’Reilly Media
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