Update on Database Protection Legislation (6-20-99)

Legislation to create new intellectual property protections for data passed the House Judiciary Committee on May 26th. Similar legislation in the 105th Congress passed the House but did not make much headway in the Senate. The new bill -- H.R. 354, the Collections of Information Antipiracy Act -- has been modified from the earlier legislation in order to address concerns from the educational, scientific, and library communities that the new protections would impede the full and open exchange of data upon which education and research rely.

The House Commerce Committee is considering a related bill -- H.R. 1858, the Consumer and Investor Access to Information Act of 1999 -- that has a different approach to protecting databases and has received broader support from the library community. A comparison of the two bills can be obtained from an American Geophysical Union alert on this issue (http://www.agu.org/cgi-bin/asla/asla-list).

Legislation to create new forms of intellectual property protection for databases did not make it through the 105th Congress in part due to strong opposition from the scientific, academic, and library communities. Although legislation passed the House, it stalled in the Senate but with the promise from Senate Judiciary Committee chair Orrin Hatch (R-UT) that it would be taken up early in the 106th Congress with a quick hearing and revised legislation. Although the Senate has yet to act, Rep. Howard Coble (R-NC) has already re-introduced his House-passed bill as H.R. 354. It is, however, somewhat revised from its predecessor in the 105th Congress, H.R. 2652, and opposition also has been somewhat muted.

For more background on action in the 105th Congress, including previous AGI activities on this issue, see the AGI update at http://www.agiweb.org/legis105/wipoupd.html.

A number of scientific organizations, most notably the American Association for the Advancement of Science, have been outspoken in their opposition to Coble's earlier legislation. In August 1998, AAAS sent a letter to its affiliated societies encouraging them and their membership to write to the Judiciary Committee in opposition to H.R. 2652, which AAAS believed "could well impede access to critical data and/or drive up the costs of doing research." AAAS adopted 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.

Specific problems with H.R. 2652 raised by scientists included the bill's extension of the time period for protection whenever any change is made to the database, thus possibly extending protection indefinitely due to a succession of small changes; the exclusion of academic and other "fair use" data users but only insofar the use does not damage current or future markets for the database, which in the case of a scientific database would be precisely those users; a waiver of civil penalties for non-profit users but only at a judge's discretion; the remaining possibility that academic or other research users could have their work confiscated even in the absence of civil or criminal penalties; and a vague definition of what constitutes "data".

In response, Coble's new bill -- H.R. 354 -- sets a 15-year time limit on data protection and clarifies the types of "fair-use" activities exempted from the bill's punitive measures: "An individual act of use or extraction of information done for the purpose of illustration, explanation, example, comment, criticism, teaching, research, or analysis, in an amount appropriate and customary for that purpose, is not a violation of this [legislation]."

Opposition does remain with critics asserting that other concerns have not been met. There is growing pressure, however, to get some form of legislation passed in order to bring the United States into compliance with database protection laws being enacted in Europe that extend protections only to countries with similar safeguards -- should the US fail to develop similar database protection laws, US companies could be at a competitive disadvantage in Europe. There is also a possibility that the World Intellectual Property Organization (WIPO) will take up a database protection treaty that was shelved in 1997 after US and developing nations opposed it.

For more on the background of this issue, go to http://www.agiweb.org/legis105/wipoupd.html.

Sources: AAAS, Library of Congress

Please send any comments or requests for information to the AGI Government Affairs Program.

Contributed by David Applegate, AGI Government Affairs.

Posted April 17, 1999; Last Updated June 20, 1999

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