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Open Access and the Public Domain in Digital Data and Information for Science: Proceedings of an International Symposium 7 Database Protection in Countries of the South Alan Story University of Kent Law School, United Kingdom INTRODUCTION The spectrum of legal questions facing countries of the South that relate to this symposium’s focus, open access to digital data and information for science, could be the topic for a conference in itself. This presentation will provide a general overview of the global protection of digital databases, with particular focus on these issues in the countries of the South, followed by an examination of balancing national interests in access to databases. However, taking advantage of the prerogatives granted to a speaker, I will begin by reviewing what this presentation will not cover. First, I will not use the phrase “developing countries” because the words “developing countries” are in my view somewhat misleading by themselves. Many remain unconvinced that a number of countries are actually developing as opposed to becoming more integrated and more dominated by rich countries. What, for example, does “developing” actually mean? And analytic precision is lost if, for example, Brazil and Somalia are grouped together in a category called “developing countries.” I want to instead use the phrase “countries of the South.” I admit this is also problematic, and I add the forceful caveat that there is a great disparity between, among, and within such countries. For example, there are several “South Africas” and although located in southern Africa, South Africa differs greatly from other southern African countries. Second, this presentation will not be a legal primer or explanation of the domestic laws covering databases in various countries of the South. Rather, the focus will be decidedly global and international and will examine particularly the database protections that such countries have become obliged to enforce within their own borders, namely intellectual property rights belonging to non-nationals who are foreign database owners situated in relatively rich developed northern countries, primarily those in Europe and the United States. To cite one example, all of South America and the Caribbean account for only 0.2 percent of all databases existing in the world in 2001. One of the principal questions I will ask is, what is the basis for this legal obligation of property protection, and the corollary question, does this approach work for their benefit? Third, this paper will not discuss the myriad of bread-and-butter legal questions relating to contracts that may arise between, for example, the owner of a particular database and the users, in this case, researchers in a country of the South who may want to use that database. With databases, as with other forms of intellectual property, legal questions related to individual commercial contracts are taking on increasing importance. Indeed, often they are more important than strict intellectual property questions. This is not the forum to address such particulars of contracts and the unequal bargaining that frequently occurs between database owners and researchers in the South.
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Open Access and the Public Domain in Digital Data and Information for Science: Proceedings of an International Symposium Fourth, this paper will not examine in any significant detail all the complex legal issues of database encryption and the prohibition on anticircumvention devices that Professor Dreier1 mentioned and the threat that these new legal technological developments pose to database access. The new buzz phrase “digital rights management” is a particularly dangerous development for users of electronic information, including database users, and it essentially focuses on protection rather than management. It is being driven, as the European Association of Libraries explains, by technology and its limitations, and in the process may attempt to trump the proper and legal use of copyrighted materials. At the same time, it should be recognized that the conditions under which southern scientists and researchers do their work, and hence the circumstances under which they acquire access to their databases, are often very different from those facing their colleagues in the North in much richer countries. I will look at this question in more detail when I examine the notion of national treatment of copyrighted works. Furthermore, a wide range of legal issues, including those involving intellectual property rights, both create and reinforce these differences. Because of the nature of intellectual property and its duration as a property right stretching many years into the future (and, indeed, perhaps permanently under the terms of the European Union’s database directive) intellectual property determines not only present but also future distributions and allocations of both information and wealth. A database right as a property right expresses a power relation between persons, in this case between the owners and the users of the database, and represents not only the state’s grant of monopoly rights to a private party (the owners) but also that party’s power over other people. In other words, the owner of intellectual property in databases can decide who conducts research and what they can research about. Finally, and by way of information, the production and use of digital data necessarily implies access to computers themselves operated by some type of computer software. Here again, intellectual property issues should be appreciated as setting the context for public domain and access issues. Under the terms of the agreement on Trade-Related Aspects of Intellectual Property, better known as the TRIPS agreement, computer software is protected as a literary work under the leading global international copyright regime, the Berne Convention. TRIPS and Berne presume a proprietary model of software and, in the case of the best known proprietary operating system, Microsoft Windows, users in the countries of the South must, as elsewhere, pay for an expensive licensing agreement to access this software. They must also abide by a series of legally and technically restrictive rules if they wish to access data and scientific information. Other speakers will address the alternative nonproprietary approach, such as open-source or free software, and I will make but two short and related points. One, if they are interested in wider access to data and information issues, donor agencies and governments in rich countries of the North should cease privileging intellectual-property-protected proprietary software in their computer aid programs to poor countries and, for example, to educational institutions. Some government aid agencies, when pushed, even admit the advantages of nonproprietary systems. For example, in the United States under the U.S. Agency for International Development, there is the Leland Initiative, which ships PCs equipped with Microsoft products to poorer countries. The coordinator of this initiative has admitted that “on balance, we are for the cheapest and most affordable approach which would be open source.” So, the very agency shipping these computers loaded with Microsoft Windows to Africa and Latin America admits that this is, in fact, not the best software system for those countries. Second, we from the North are not encouraging nonproprietary formats. While conducting research last year for the U.K. Commission on Intellectual Property Rights about the reasons for the still limited (though rapidly expanding) use of free and open-source software in the countries of the South, I often heard this response: “If this open-source software is so good why are so many organizations, companies, governments, and rich countries still hooked on proprietary software?” (At my university, the University of Kent, only Microsoft Windows is available for users.) If UNESCO and other organizations want to give at least equal billing and equal status to nonproprietary formats, they should begin the process themselves by contributing to better and more equitable global access to information and by helping to break the reliance of poorer countries on proprietary software. 1 See Chapter 6 of these Proceedings, “Overview of Legal Aspects in the European Union,” by Thomas Dreier.
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Open Access and the Public Domain in Digital Data and Information for Science: Proceedings of an International Symposium LEGAL OVERVIEW OF GLOBAL PROTECTION OF DIGITAL DATABASES Moving now to the main focus of my remarks, the question of the legal protection of databases, at its most basic level, is relatively straightforward. Article 10.2 of the TRIPS agreement states that so-called “original databases” are considered as copyright-protected works in essentially the same fashion as books or photographs. I say “so-called original databases” because we should not forget that, on the one hand, “original” in copyright does not coincide with the dictionary definition of original. It does not mean new, novel, cutting edge, or innovative; it is a highly ideological and misleading word. On the other hand, the level of skill or creativity required to clear this originality hurdle is generally very low and variable in different jurisdictions. In the United Kingdom, for example, where I work and live, mundane work such as football pool coupons, street directories, and TV schedules have been protected as compilations equivalent to original databases. Countries that wish to become members of the World Trade Organization (WTO) must also become signatories to the TRIPS agreement and hence provide copyright protection for all such databases. Indeed, such protection is automatically mandated among all signatories immediately upon creation of the database. In other words, if we today created an original database, it would automatically get copyright protection in France, and then all countries in the world that are TRIPS signatories would also have to recognize that it should be protected. TRIPS, like the Berne Convention and the World Intellectual Property Organization (WIPO) Copyright Treaty, is a minimum rights agreement. A country must provide state protection within its boundaries up to a certain minimum level, which is in itself quite high, or it would be in breach of the agreement. For example, a country of the South is prevented from deciding whether to allow copyright protection in insect-related databases (original or nonoriginal) even though the country is strongly reliant on agriculture, has a very low income level, and is aware of the damage caused by insects and other pests and the low level of research on the problem. Nor could that country say that it does not want to have encryption devices in such databases. They could not make this decision, even if this provided a real incentive for the advancement of scientific research. Moreover, the TRIPS agreement does not allow broad public interest exemptions to copyright. For example, it is not possible to create an exemption based on an economic reliance on agriculture for sustainable food resources. The protection of this copyrighted work, in this case a database, must last for a minimum number of years from the death of the author of that database. At the same time there is no maximum term of protection and it is quite legal for countries to establish a term of life plus 70 years or indeed to continue to extend the terms of such protection. This has already occurred in the United States and the European Union. The unevenness of copyright database duration terms across the globe is necessarily trade distorting and contradicts the first clause of the first sentence of the preamble of the TRIPS agreement, which states, “Desiring to reduce distortions and impediments to international trade. . . .” In fact, this notion of allowing maximum terms while providing no ceiling itself distorts international trade. The overprotection of intellectual property rights is not, however, viewed as trade distorting. The 1996 WIPO Copyright Treaty, currently ratified by 40 countries including countries of the South, also contains copyright protection for compilations of data or other material in any form, whether digital or not, and which, by reason of the originality of the selection or arrangement, constitute intellectual creations. This is the originality language also found in the TRIPS agreement, and it is meant to distinguish “original” databases from so-called “nonoriginal databases,” which are not the subject of any international legal norms, but which are protected by countries of the European Union as well as Iceland, Liechtenstein, and Norway. Scientific information that exists outside the parameters of a database, for example, published in a journal, is also protected by copyright and this constitutes another barrier to access for scientists in the South. THE BALANCING OF NATIONAL INTERESTS IN ACCESS TO DATABASES As already stated, all WTO member countries that are necessarily signatories to TRIPS and all countries that are signatories to the WIPO Copyright Treaty must provide national treatment to all databases, both those produced within their own jurisdictions and those from all other WTO members. As Paul Goldstein explains, national treatment is a rule of nondiscrimination promising foreign traders who come within a treaty’s protection that they
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Open Access and the Public Domain in Digital Data and Information for Science: Proceedings of an International Symposium will enjoy the same treatment for their creations in the protecting country as the protecting country gives to its own nationals.2 Or as Stephen Ladas, another commentator, puts it, national treatment means the complete assimilation of foreigners to nationals.3 If WIPO succeeds in establishing international protection for nonoriginal databases, then we can expect to see the notion of national treatment in both original and nonoriginal databases, which countries of the South will also be expected to endorse and uphold. At first this appears noncontroversial. Would we want to endorse discriminatory treatment of foreign databases within a particular national jurisdiction? If, for example, we were drafting new copyright or database legislation for a country such as Egypt, would we want to say that databases generated in Egypt should receive preferential treatment and protection within Egypt or, conversely, more or less open access compared with databases created in the United States or the European Union? Yet we should look into the matter more deeply. Should all databases, no matter what their national origin, be treated alike? Should an economically disadvantaged country be required to protect a database generated by a rich country as if it were generated within its own borders or within those of another poor country? More pointedly, does this “as if” approach really make sense? In other worlds, should all databases around the world be formally protected on the same level? The answer suggested by other parts of the law suggests otherwise. Speaking about the conditions existing in Paris, Anatole France wrote in 1894 that “the law in its majestic equality forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.” A law whose very nature is based upon difference results not in equality but rather in substantial inequality, a difference in consequence and effect. The same is true of databases. While a database created in the United States and a database created in Namibia are both databases, just as a rich person and a poor person are both persons, the conditions that led to their creation are in all likelihood radically different. Why should they be treated alike when they are in fact very different? Why should there be a one-size-fits-all approach to databases, which requires the same conditions of access, the same cost of access for all researchers, and the same terms of protection? Is it equitable to require poor countries of the South to put their legal machinery in the service of the mission of treating “un-alikes” alike? The other side of this “as if” problem suggests that the conditions of access should be the same in all countries. Professor Dreier talked about the question of fair use,4 which would require that countries in the South, through protection of their databases, permit exemptions only in certain special cases. Such cases must not conflict with the normal exploitation of the work and must not unreasonably prejudice the legitimate interests of the rights holders, to use well-known phrases from international copyright conventions. Let us examine these phrases. We cannot find out what these mean from the textbook writers and from the case law, but it is assumed that countries of the South in their approach to protection must track the notions of fair use in U.S. copyright jurisprudence, of fair dealing in the United Kingdom, or of similar exemptions available in Europe. The standard of what is considered “normal” is based on the standard existing in the United States, Europe, and a handful of rich countries, even though they have different traditions and different levels of income than countries of the South. So we can ask whether it is fair that what is considered fair and normal in France also becomes the standard for fairness in Senegal? Given the radically different income levels, why is it not fair that one set of researchers, for example, those working in France, should be charged one rate of access and another set of researchers, such as those in Senegal, be charged much less? International copyright law, however, does not ask these basic fairness questions. No text, then, suggests that it would be fair or a legitimate special case for a country of the South to enact legislation that would recognize its special needs for access to data and information, even when such data and information have arisen after decades, sometimes centuries, of economic exploitation by rich countries and have led to global inequalities in educational attainment and literacy. It would not, for example, be allowable for South Africa to say that it was going to create an exemption for material on HIV/AIDS in southern Africa in a database. 2 Paul Goldstein. 2001. International Copyright: Principles, Law and Practice, 72, Oxford University Press, Oxford. 3 Stephen Ladas. 1938. The International Protection of Literary and Artistic Property 365, quoted in Paul Goldstein. 2001. International Copyright: Principles, Law and Practice, Oxford University Press, Oxford. 4 See Chapter 6 of these Proceedings, “Overview of Legal Aspects in the European Union,” by Thomas Dreier.
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Open Access and the Public Domain in Digital Data and Information for Science: Proceedings of an International Symposium Professor David Vaver of Oxford University has written that: Intellectual property law as a whole seems ripe for wholesale reconsideration, both nationally and internationally. One might start with this fundamental premise that the system of rights it establishes enhances the goal of desirable innovation, creativity, and the widest possible distribution of ideas, information, products and technology in the most efficient and generally best way. The premise is, of course, empirically unprovable. We cannot, in fact, prove that the intellectual property system as it exists today produces the best innovation and creativity, but we all seem to think that we know that it is the best way. It is assumed that attaching a private property right to every activity with potential value in exchange, and thus creating a market in such rights, ultimately benefits not only the right holders but the communities in which they form a part….5 This quote is a challenge to us all. We should challenge the presumptions of intellectual property, because, overall, intellectual property does not work for the benefit of countries of the South in the current conjecture. 5 D. Vaver. 1997. Intellectual Property Law: Copyright, Patents, Trade-marks 270, Irwin Law, Concord, Ontario, Canada.
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