American Geological Institute

Government Affairs Program


Update on Database Protection (10-23-98)

Most Recent Action
Database legislation did not make it through the 105th Congress but promises to come up early in the 106th Congress with Senate Judiciary Committee chair Orrin Hatch (R-UT) promising a quick hearing and revised legislation. A planned hearing in September on a Senate counterpart to the House-passed H.R. 2652, the Collections of Information Antipiracy Act, never took place due to the shift in focus toward impeachment proceedings. Hatch was also reportedly upset at an attempt by the House to push H.R. 2652 through the Senate without hearings by attaching it to another bill, H.R. 2281, the Digital Millenium Copyright Act, that had already passed the Senate and was slated for a House-Senate conference. H.R. 2281 and its Senate counterpart, S. 2037, would implement the World Intellectual Property Organization (WIPO) Copyright Treaty and Performances and Phonograms Treaty, neither of which address databases. In the ensuing conference, the Senate negotiators insisted that H.R. 2652 be dropped from the final bill, which passed both houses and has been presented to the President for his signature. For additional information on these bills, visit the Library of Congress's Thomas web site and search for House Reports 105-551 and 105-796 (accompanying H.R. 2281), Senate Report 105-190 (accompanying S. 2037), and House Report 105-525 (accompanying H.R. 2652).

On September 9th, the Senate Judiciary Committee was scheduled to hold a hearing on S. 2291, the Collections of Information Antipiracy Act. This bill is identical to legislation that passed the House in May. On August 14th, the American Association for the Advancement of Science sent a letter to its affiliated societies encouraging them and their membership to write to the Judiciary Committee in opposition to the legislation, which AAAS believes "could well impede access to critical data and/or drive up the costs of doing research." Last fall, AAAS circulated a Statement on Intellectual Property Protection for Databases. The AAAS letter also refers to Administration opposition to the legislation, expressed in memos from the Departments of Commerce and Justice. AGI is currently discussing a response to the AAAS letter. The following update provides background on this issue, including AGI's previous activities.

Previous Actions
On July 10th, Senator Rod Grams (R-MN) introduced S. 2291, which is very similar to H.R. 2652, the Collections of Information Antipiracy Act, that passed the House on May 19th. H.R. 2652, introduced by Rep. Howard Coble (R-NC), was amended before passage in part to allay concerns raised by the scientific community. Those amendments and the bill's implications are detailed in an article on this subject written by Dee Ann Divis, entitled "Database Legislation That Bites," which appeared in the May 1998 issue of GeoInfoSystems. Both S. 2291 and H.R. 2652 have been referred to the Senate Judiciary Committee. House Committee Report 105-525 accompanying H.R. 2652 provides extensive information on the rationale behind the bill and the meaning of its various provisions.

On February 12th, the House Judiciary Subcommittee on Courts and Intellectual Property held a hearing on H.R. 2652, the Collections of Information Antipiracy Act. In his opening remarks, Chairman Coble announced that he was planning to offer several amendments to the bill, one of which addresses "permissible uses by scientific, educational and research institutions." The subcommittee subsequently passed the amended bill on March 18th and sent it to the full Judiciary Committee.

On October 9, 1997, Rep. Howard Coble (R-NC) introduced H.R. 2652, the Collections of Information Antipiracy Act, a bill "to prevent the misappropriation of collections of information." The bill would create new intellectual property protections for databases, particularly electronic ones, that are not otherwise covered by existing copyright law. Similar legislation introduced in the last Congress produced a storm of criticism from the scientific community, and it remains to be seen whether the new bill fully addresses their concerns. Coble chairs the House Judiciary Subcommittee on Courts and Intellectual Property, which held a hearing on this legislation in mid-October .

In his introductory remarks on the House floor, Coble stated that his bill was substantially different from H.R. 3531 introduced in the 104th Congress by the subcommittee's former chairman, now retired, Rep. Carlos Moorhead (R-CA). He indicated that he was "particularly mindful of the concerns of the library, scientific, research, and educational communities" in drafting the bill. He went on to say that the concerns raised over H.R. 3531 had been alleviated in the new bill "by specifically allowing access and use for those purposes, while still providing necessary protection to ensure continued investment and production of collections of information." Unlike H.R. 3531, which created a new sui generis form of protection for databases, the new bill prohibits the unfair use of the data collected in a database.

This issue has been of major concern within the scientific community, including AGI and a number of its Member Societies. On October 31st, the AAAS Board of Directors unanimously voted to approve a statement on database protection that will now go to the presidents of the 235 AAAS affiliate societies for their endorsement.

Over the past year, many in the scientific community have raised concerns over proposals by the United Nations and the U.S. government to establish new types of intellectual property protection for databases. Full and open access to scientific databases is critical to research and collaborations across the sciences. A Political Scene column in the June 1997 issue of Geotimes entitled Scientific Databases Caught In Copyright Web provides background on this issue. A somewhat longer article by the same author appeared in the August 12, 1997 issue of Eos.

AGI put out an action alert on this issue last fall when the UN's World Intellectual Property Organization (WIPO) was to meet and sign a treaty on database protection. Action on the treaty was delayed, but in mid-September, WIPO is convening a Meeting of Experts in Geneva to reassess the database issue and make recommendations to WIPO.

In late July, Rep. Howard Coble (R-NC) introduced legislation, H.R. 2281, to implement two other treaties signed at the WIPO meeting.

In August, the U.S. Copyright Office issued its report on legal protection for databases. The report was requested by Senate Judiciary Committee Chairman Orrin Hatch (R-UT.

In anticipation of renewed action by WIPO and Congress, AAAS has drafted a statement on behalf of the scientific community which it represents on Intellectual Property Protection for Databases. A draft is being circulated internally and will be released in mid-September. The draft is being developed through the AAAS Scientific Freedom, Responsibility and Law Program.

In May, the American Geophysical Union adopted an official position statement on The Importance of Archiving and Availability of Geophysical Data, which encompasses this and related issues. An AGU Science Legislative Alert (ASLA): Database Protection Legislation Moving in Congress was sent out on August 12, 1998.


House Judiciary Subcommittee on Courts and Intellectual Property
October 23, 1997

Opening Remarks
In his opening comments, Chairman Coble announced that the hearing would focus on both the Vessel Hull Design Protection Act and the Collections of Information Antipiracy Act. He stated that the latter bill "provides adequate protection to ensure there is an incentive for companies to invest in the development of collections of information, without inhibiting members of the scientific, library, and research communities from carrying on their work." He addressed concerns and rumors about the bill by stating that another hearing will be held on the bill early next year and that he has met with dozens of parties on both sides of the issue and incorporated as many suggestions as he felt was appropriate into the bill.

Witnesses
Honorable Marybeth Peters, register, U.S. Copyright Office
Dr. William Wulf, president, National Academy of Engineering
Professor Jerome Reichman, Professor of Law, Vanderbilt University
Dr. Laura D'Andrea Tyson, former National Economic Advisor to the President and former Chair, White House Counsel of Economic Advisors, Consultant to Reed-Elsevier, Inc. and the Thomson Corporation
Paul Warren, on behalf of the Coalition Against Database Piracy
James Neal, Sheridan Director of the Milton S. Eisenhower Library, Johns Hopkins University

Testimony
The full written testimony from the witnesses is available from the
House Judiciary Subcommittee on Courts and Intellectual Property web site

Ms. Peters testified on the importance of databases to the economy. She warned that the public may lose access if databases are not protected, but also cautioned against overprotection. She suggested focusing on a policy that will allow the greatest public access and stated that "the net result of a well-crafted bill should be to make more facts easily available to the public." Peters agreed that legislation was necessary to fulfill the void left by the Feist case and suggested returning protection to the level of the "sweat of the brow" approach. She noted that the legislation was a positive first step, but further review was needed by U.S. Copyright Office to understand the full implication of the bill. In response to a question by Coble, she explain ed that the US must craft a bill that meets its needs and not bend to meet the expectations of the EU, whose sui generis approach goes into effect on January 1, 1998.

Dr. William Wulf testified on behalf of the National Research Council, stressing the importance of the issue to the Academy. In his written testimony he noted, "a necessary component of past and continuing achievements [of the U.S.] has been the wide availability of scientific and technical data and information, ranging from raw or minimally processed data to cutting-edge research articles in newly developing fields." Although Wulf believes H.R. 2652 is an improvement over last year's bill, it still contains many provisions with which he disagrees. He questioned the need for increased protection and emphasized the importance of considering the full legal and economic implications of legislation to all people. He noted that "special care must be taken to preserve and promote the access to and use of databases for research, education, library and other public interest uses."

Professor Reichman echoed Wolf's assertion that the need for increased protection has not been demonstrated. He testified that this bill has similar flaws as H.R. 3531 in 1996 because "the balance tips too far in favor of database providers, and the economic and social costs of this proposal are intolerable." He then specified conditions needed in legislation to adequately protect the scientific community: legal right to access or fair pricing; use of data for any research or educational process; and freedom from interference.

Dr. Tyson testified that we need adequate protection of databases to continue investment in technologies to obtain this data and noted that we do not have that protection now. She believes the bill distinguishes between fair and unfair uses, which is necessary to ensure data will be available. She said that government data, since funded by taxpayers, should be accessible and have different regulations than private-sector databases.

Mr. Warren shared his personal experience with piracy on his cable guide. Since other companies have begun using his compiled data, his subscriptions have decreased and he is in danger of losing his company. Warren concluded his written testimony by acknowledging that he had "some initial uneasiness and uncertainty over the dramatic shift that H.R. 2652 represents from the sui generis approach contained in (a) last year's bill, H.R. 3531, (b) the EU Directive, and (c) last year's draft World Intellectual Property Organization ("WIPO") treaty. As we told the Copyright Office, our preference would be for Congress to use H.R. 3531 as its starting point, retaining its sui generis approach, but modifying that proposal to meet legitimate concerns and questio ns raised regarding that bill. Nonetheless, our members believe that H.R. 2652 addresses many of the points set forth in our May submission to the Copyright Office. H.R. 2652 provides a solid basis for fair and effective legislation."

Dr. Neal shared five primary concerns of the library community regarding the bill:

During the question and answer section, a debate occurred on the merits of data versus database encryption. Coble concluded the hearing by stating that no one wants to prevent libraries and scientists from getting information, but also noted that they should not benefit without paying.

House Judiciary Subcommittee on Courts and Intellectual Property
February 12, 1998

Opening Statements
Chairman Coble announced that he is planning to offer several amendments to the bill, one of which addresses "permissible uses by scientific, educational and research institutions." The bill is scheduled to be marked up in several weeks.

Witnesses
Robert E. Aber, senior vice president and general counsel of Nasdaq Stock Market, Inc.
Dr. Debra Steart, vice provost and dean of the graduate school, North Carolina State University
Richard F. Corlin, M.D.
Jane C. Ginsburg, Morton L. Janklow Professor of Literary and Artistic Property Law at the Columbia University School of Law
Jonathan Band, Online Banking Association
Tim Casey, Information Technology Association of America

Testimony
The full written testimony from the witnesses is available from the
House Judiciary Subcommittee on Courts and Intellectual Property web site

Robert Aber testified in support of HR 2652. He expressed his frustration that the situation for American database producers has continued to worsen in recent years, and he urged members of congress not wait for market failure in the database industry before acting. He believes that database protection in the U.S. continues to erode as a result of court decisions handed down since Feist -- most notably the decision involving Warren Publishing, Inc., which "sent a message to America's database producers that, short of a new law, they must look to other means to assure that their products are not unfairly copied and distributed."

Dr. Steart presented testimony on behalf of the Association of American Universities, the American Council on Education, and the National Association of State Universities and Land-Grant Colleges. She testified that the predominant view within the university community is that enactment of H.R. 2652 would limit or deny future access to information that is readily accessible for research and educational uses today. She listed four main concerns:

She concluded by asking the committee to "craft that legislation to accommodate fully the exciting new opportunities for research and education offered by the digital environment."

Dr. Corlin expressed the American Medical Association's (AMA) strong support for H.R. 2652. He did, however, propose several changes:

Jane C. Ginsburg drew parallels between the bill and the Feist decision. She attempted to allay fears that the bill would hinder development by noting that this bill would not create a "new" intellectual property right, but "would largely restore the s tatus quo ... protection for the 'sweat of the brow' approach."

Jonathan Band testified against the bill for the Online Banking Association. He believes the bill is based on four incorrect assumptions: "(1) the Feist decision upset the prevailing intellectual property standard -- sweat of the brow --governing the database industry; (2) the Feist decision left little legal protection for databases; (3) the database industry has been harmed, and will be harmed in the future, by this absence of protection; and (4) the European Database Directive necessitates the adoption of additional database protection." He continued by stating that "once the flaws in these assumptions are revealed, the rationale for this legislation disappears." He concluded by stating that H.R. 2652 would harm OBA members "both in their capacity as financial institutions and as vendors of Internet products and services."

Tim Casey testified for the Information Technology Association of America that "they feel strongly that the evidence is lacking to support passage of the legislation as currently drafted. Indeed, given the healthy status of the U.S. database industry, a change in the status quo seems particularly unwarranted. Moreover, the risk of unintended consequences that would be harmful to the industry and to the U.S. economy far outweigh any private benefits that may result. We therefore respectfully recommend that the Subcommittee continue to gather facts about this issue and put off further legislative effort on this bill until compelling evidence of its need is established. "

Sources: AAAS, Library of Congress, House Judiciary Committee


Please send any comments or requests for information to the AGI Government Affairs Program at govt@agiweb.org.

Contributed by David Applegate and Kasey Shewey, AGI Government Affairs.

Posted September 7, 1997; Last updated October 23, 1998


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