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PROCEEDINGS OF THE WORKSHOP ON PROMOTING ACCESS TO SCIENTIFIC AND TECHNICAL DATA FOR THE PUBLIC INTEREST: AN ASSESSMENT OF POLICY OPTIONS 10 A Strong Property Rights Model for Protecting Databases MR. UHLIR: Our rapporteur for this panel is Peter Leavitt, consultant and a member of the study committee. The panelists are Peter Jaszi, professor at the American University School of Law; Robert Brammer from TASC; David Fulker from the University Corporation for Atmospheric Research; Kenneth Hadeen, formerly with the National Oceanic and Atmospheric Administration's (NOAA's) National Climatic Data Center; James Neal from the Johns Hopkins University Library; Ferris Webster from the University of Delaware, College of Marine Studies; and Jon Baumgarten from the law firm of Proskauer Rose LLP. Our issue for this session is to look at questions concerning the potential enactment of a strong property rights model for protecting databases. (See Box 10.1 for a list of questions guiding the discussion.) Yesterday, Marybeth Peters, the Register of Copyrights, provided a summary of the principal provisions of the European Union Database Directive (E.U. Directive), which is the property rights model that has already been adopted by the European Community. We also have heard about the legislation that was introduced in the last session of Congress, H.R. 2281, by the House Judiciary Committee. To begin the discussion we should determine what we are talking about in terms of the general kinds of provisions that this a model embraces and also discuss the bill that was introduced in the last session of Congress in relation to the E.U. Directive. Box 10.1: Issues for the Discussion Session on a Strong Property Rights Model for Protecting Databases Identify the potential benefits and problems of this legal model in your database activities in comparison to the status quo. How would you define the scope of prohibited activities by users? Should the law distinguish between different categories of users? If so, how? What specific provisions regarding access and use (both authorized and unauthorized) would you want included in such legislation? Why? What specific exclusions and limitations on the rights of database owners (e.g., by category of user, type of use, or type of database) would you want included? Should sole-source databases be subject to any greater requirements for openness (e.g., compulsory licenses, fee regulation, etc.)? Why? Are there prerequisites that a database producer should meet before protection is accorded? Why? Should the property right be limited in time? If so, what's an appropriate length of time, and why? Are there any special provisions needed for access to and use of government data incorporated into privately produced databases? If so, what should they be, and why? Identify any other issues important to public-interest access to and use of data and databases under the strong property protection model, and state why they are important. In particular, are there any technological trends that may alter the balance of rights substantially?
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PROCEEDINGS OF THE WORKSHOP ON PROMOTING ACCESS TO SCIENTIFIC AND TECHNICAL DATA FOR THE PUBLIC INTEREST: AN ASSESSMENT OF POLICY OPTIONS The bill that was introduced last session, as Marybeth Peters pointed out, has many of the same features as the European sui generis model. It was characterized yesterday as a misappropriation or unfair competition approach, and I think we should discuss what that model is before we move on to the general discussion. I was wondering if Peter Jaszi might give some introductory comments about the relationship of these two; and we can use that as a point of departure. MR. JASZI: I will certainly try. As I was looking at the questions last night and trying to decide what was meant by a “strong property rights model,” a phrase that is used in the question sheet, I thought about the relationship between the European—as it is sometimes called sui generis—intellectual property rights approach on the one hand and the so-called, and I would stress so-called, “misappropriation” approach of H.R. 2652, the House bill that ultimately contained Title V of H.R. 2281, on the other. I am pleased to hear that in her presentation yesterday, which I had to miss, Marybeth Peters stressed the functional similarity between these two approaches, the sui generis approach and the so-called “misappropriation” approach, because, at least from my standpoint, they have much more in common than they have notable differences, at least functionally considered. Therefore I think it would make sense, and I would propose, that for the purposes of this discussion we might group the two together as different examples of the strong property rights model. I think of them as both representing proposals for database protection of biblical proportions—that is, protection is applicable wherever two or more data points are gathered together. The critical shared characteristic of these two approaches is that however they may be styled and however their goals and objectives may be stated, their effect is similar. In the case of the sui generis model, the stated goal or objective is simply to provide intellectual property protection for compilations of data as such, and in the case of the so-called “misappropriation” approach, the stated objective is to provide protection for the investment that resides in or that goes into such compilations of data. Their effect is to provide, functionally speaking, protection for data as such. The central prohibition that you find in each of these different models of strong property rights legislation and the sui generis approach or the so-called “misappropriation” approach, is a prohibition against the extraction and use of items of information from a compiled database. The database may be the subject matter of protection. The goal of the protection may be to safeguard investment in databases, but the way in which these goals are accomplished is by prohibiting extraction and use of items of data as such. So, functionally speaking, in either case we are looking at a model under which protection attaches to items of data through prohibitions against unauthorized extraction and use. What else do the two models have in common? Each includes a broad inclusive definition of the kind of information that is covered by its provisions and of the kinds of activities on the part of a compiler of information which give rise to protection of the so-called “misappropriation ” bill. H.R. 2652 in the last Congress, for example, spoke of protection for information collected, organized, or maintained by a database provider. As a result, such legislation reaches almost every imaginable form of compiled information. It is hard to identify, in fact, any category of information or form of information product to which it would not apply. So that is a
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PROCEEDINGS OF THE WORKSHOP ON PROMOTING ACCESS TO SCIENTIFIC AND TECHNICAL DATA FOR THE PUBLIC INTEREST: AN ASSESSMENT OF POLICY OPTIONS very important shared characteristic between these different versions of the strong property rights model, the extreme or extraordinary reach in terms of the kinds of material protected. They have another shared characteristic as well, which is that in their pure form, at least before the tinkering begins, they can' t as a theoretical matter discriminate between different kinds of categories of uses and users. If the test of liability under such a statute is, for example, whether the use of information from protected compilation harms the actual or potential market for that compilation, then any kind of use—a commercial use, noncommercial use, personal use, scientific use, educational use—may well fall within the scope of that broad prohibition. So it seems to me that the challenge for this session today, given the task we have been assigned (which is to assume a congressional choice to institute legislation along this model), is to try to figure out whether it is possible and feasible —practically and politically—to craft a sufficient number and a sufficient array of exceptions, limitations, and qualifications to the extraordinarily broad sweep of protection which is characteristic of any version of the strong property rights model. I am not sure that it is possible. In fact, I think it is very difficult. I am myself a skeptic as to its feasibility and practicality, but I think nonetheless the exercise is one worth undertaking. Why is it potentially a difficult exercise? I think that I would identify a couple of reasons. One is that to try to craft a solution to all of the real-world problems that are thrown off by the strong property rights form or model of legislation is an exercise that is likely to produce at the end of the day legislation which is extremely complicated, elaborate, and detailed; legislation which I think is less likely to command understanding and respect from ordinary or even not-so-ordinary data users. The other reason is more concrete. The real-world process by which qualifications, exceptions, limitations, and conditions might be introduced into a legislative scheme following the strong property rights model is a very political process; and the results are likely, therefore, to be imperfect. No matter how hard you try, it is likely that some, perhaps even many, deserving uses or user groups are going to be left out of the final accounting. Let me just say one more thing, and then I will stop. This morning, I have been saying the so-called “misappropriation” approach when I refer to Title V of H.R. 2281, formerly known as H.R. 2652. The reason is simple: there is a relatively well-developed tradition of misappropriation law in the United States, both in federal and in state courts. Generally speaking, this misappropriation law, which functions as a kind of supplement to the major branches of intellectual property law such as copyright, trademark, and patent, is rather carefully and closely circumscribed. Claims for misappropriation, common-law misappropriation as we might call it, arise only in rather narrowly specified situations and circumstances—situations, in particular, involving information products which are time sensitive in character (“hot news” as the famous INS decision of the U.S. Supreme Court would have it) and cases or instances in which the unauthorized appropriation of material has a relatively dramatic, clearly measurable negative-incentive effect on the activities of the producer or compiler of that material. In other words, true misappropriation, as distinct from so-called “misappropriation,” is in itself a rather circumscribed category of rights. True misappropriation legislation, in my view, would not necessarily qualify as another example of the so-called “property rights” model; in fact, the version of misappropriation legislation which is given in H.R. 2652 and H.R. 2281 deviates significantly enough from the true misappropriation model to qualify comfortably under the rubric with which we are dealing today.
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PROCEEDINGS OF THE WORKSHOP ON PROMOTING ACCESS TO SCIENTIFIC AND TECHNICAL DATA FOR THE PUBLIC INTEREST: AN ASSESSMENT OF POLICY OPTIONS MR. UHLIR: Thank you. I would like to add a couple of things to that before we move on regarding the similarities between the congressional approach last year and the European model. They both have a 15-year term, which is a substantial amount of time in this field of endeavor and an issue that we will be discussing later. Also, in terms of the scope of subject matter that is covered, both of these approaches include collections of works of authorship. This also has been pointed out as a potential problem in terms of the definition of a database —a collection of copyrightable material such as articles in a journal or a compilation of short stories or an anthology of some kind. Certainly that was the interpretation of the E.U. Directive to include, say, online journals to be covered by that protection. A similar interpretation was suggested in the House version as well, although that was subsequently modified in the Senate discussions that considered the House version. Ed Damich, now Judge Damich, was the Senate arbiter of those discussions last year and perhaps he has some comments on Peter Jaszi's summary or on this relationship between these two models before we continue, so that we have some agreement on what the similarities are and what we are talking about. MR. DAMICH: Yes, I would be happy to. I have to qualify that this is, of course, historical since I am no longer on the Senate Judiciary Committee, and I am not privy to what Senator Hatch's views or plans are now, but I can tell you the assumptions that we had and what we were working with. I think that Peter Jaszi makes a very good point about the fact that it is unlikely that the Senate would enact sui generis legislation under that label. Therefore, it probably would be interesting, but purely theoretical, to look at the distinctions between the two. Clearly there is a distinction in the sense that the owner of a database would prefer sui generis protection because it would provide interim protection; that is to say, for nonlawyers, that you would have a cause of action against unauthorized use of your data, regardless of whether you suffered any harm. The analogy, for example, is that if you are an owner of real property and someone walks across your property, even if there is no damage it is still a trespass because you own that property and you have the right to exclude everyone regardless of any harm. In the case of unfair competition, however, the question is whether there has been some harm proved. Peter Jaszi's point is that in the legislation that was introduced by the House, the definition of harm, from the standpoint of many of the people who opposed the legislation, was so minimal that it virtually amounted to sui generis protection. I think, therefore, that the question really is, What kinds of modifications to either sui generis or to unfair competition are necessary in order to accommodate legitimate interests that might be adversely affected? I suspect that many of the people in this room are wary of this kind of legislation to begin with. The reason Senator Hatch supported it stems from the point of view that the creation of databases and their public.distribution in the future will be adversely affected unless there is protective legislation, which I think is a different perspective if you make that judgment. I am not saying that you have to make that judgment. But if you make that judgment, you are saying, “We need robust protection, otherwise there will be adverse consequences to intellectual property, and therefore the burden of proof lies on the people who want the exceptions to say that we really need these exceptions to function,” and that was the standpoint from which Senator Hatch approached the legislation last year. I think that from what I have heard regarding the House negotiations, Senator Hatch and the staff were more open to these modifications and to treating them seriously than the House
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PROCEEDINGS OF THE WORKSHOP ON PROMOTING ACCESS TO SCIENTIFIC AND TECHNICAL DATA FOR THE PUBLIC INTEREST: AN ASSESSMENT OF POLICY OPTIONS was. I never was part of the House negotiations, but since I was part of the negotiation process representing Senator Hatch, I was prepared to advise him to go with modifications on several levels where I thought the opponents had made a good case. Senator Hatch 's position always was that he liked the protection of databases in theory, but the difficulty was in the details. First was the real problem with regard to uses of databases for scientific research and for educational purposes. Even if not convinced on the merit, just from the political viewpoint a politician would not want to ever be in the position of seeming to say, “I support a bill that is going to ruin scientific research and is really going to have an adverse impact on education.” There is a kind of political privilege that the scientific research community and the educational community have. It should not, of course, be abused. That is to say that it shouldn't be used to get exceptions that are not really necessary. But that is the difficulty, of course, for the legislative staff to try to find out exactly where to draw the line. I think Senator Hatch certainly was receptive to that kind of discussion, and in fact, as you know, we had many models that we discussed which tried to meet the needs of the scientific research community and educational community. The next problem was sole source. I thought that the negotiators made a very good case that there was a serious sole-source problem and that it had to be addressed. My own personal view, and this is not Senator Hatch's view, was that there should be a sole-source provision in the legislation clearly indicating this problem; the view of Senator Hatch was to fold the sole-source issue into a broader category of misuse of the right. Another problem was the potential market problem. Once you move into the unfair competition model, the harm to the actual market of course is provable. You can say, I have this actual market and therefore unauthorized use is a harm and should be redressed. Theoretically I didn't have an objection to potential market concerns, except for the ramifications. That is, how does the potential defendant know that any given action is going to harm a potential market? The way we tried to split the baby on that one was to say that if there were potential markets that were normally utilized, these were typical derivative markets; but as far as one that had not been utilized at all, it seemed unfair to create a potential defendant through those uses in the potential marketing. The last issue that resonated with me and with Senator Hatch was undercutting any exemptions that might be put in for scientific research and educational purposes through the use of licensing because of the bargaining power of some of the large database providers. In other words, even if you have an exemption in the statute that says, for example, you can use the data for certain permitted purposes, if you have to buy the data initially and you have a contractual relationship, the seller of the data can say that despite the fact that statutorily you are permitted these uses, I want you bound by contract to not do these things. From an academic standpoint that whole issue ideally can be addressed in other areas because it implicates copyright as well. The uniform state law people are looking at that; but since that has not been resolved in those other broader fora where it should be, I felt comfortable in recommending to Senator Hatch to do something on that issue. He was receptive to that. I have to say that with all the arguments that were brought out, in my recollection, and it is really my recollection only this morning, and so I may have forgotten, but in my recollection those still stand out as issues that concerned not only the staff, but also Senator Hatch. MR. JASZI: I wasn't involved in a lot of those negotiations. I was only there intermittently, but it did seem to me that you showed a lot of sensitivity to another issue as well. That was the risk of de facto perpetual protection, which might arise if the perks of the
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PROCEEDINGS OF THE WORKSHOP ON PROMOTING ACCESS TO SCIENTIFIC AND TECHNICAL DATA FOR THE PUBLIC INTEREST: AN ASSESSMENT OF POLICY OPTIONS legislation were interpreted in some ways. I know we have time later on the agenda, but I hope when we get to it we will talk about how meaningful term limitations are in light of different ways of interpreting the standard for protection itself. MR. DAMICH: I would just make one other comment in response, which is that I think your remarks about burden of proof illustrate, in a way, one of the difficulties inherent in this process of qualifying a strong property rights model. As far as I was able to see in the discussions of last year and in the various hearings and reports, the case for the proposition that a strong form of protection was needed to assure continued incentives for database production was really not made empirically. I don't want to suggest for a moment that it couldn't be made empirically; simply that in my observation it was not made empirically. So I think that coming to the table in the negotiations you have described, with the burden of proof assigned as you have described —that is, assuming the importance from the standpoint of preserving incentives through strong database protection—what the skeptics or opponents were being asked to prove that they need by way of exceptions was a source of considerable frustration to them. They felt, perhaps, that there should have been some other division or sharing of the burden of proof, with more of an obligation to show why this legislation should go forward assigned to the proponents of strong protection. I do not say that by way of criticism, because obviously it is well within the Senator's prerogative to decide whatever the starting point of the inquiry will be. I say that only to reiterate what I tried to point out in my opening remarks, and that is that the process of getting to an appropriate list of limitations is difficult. DR. NEAL: Could I echo a point? I think the point that you make about the impact of contracts on set-asides of legally protected exemptions is a very important one. Most schools, most libraries, and most universities don't have the staff, don't have the expertise, don't have the time, and don't have the “chutzpa” to vigorously look at the contracts that they are signing and look at them in the context of what is available to them in terms of protections. As technology becomes more of a factor in limiting access, resulting from the presumed inflexibility at least at the initial stages of some of that technology, we run the risk not only of contractual limitations, but also of technological limitations on exercising those rights. I think in university and library settings this is particularly problematic. MS. LEVINE: Lynn Levine with Warren Publishing. I would just like to say that there are a lot of small company database providers who don't have those resources either. That is a primary reason why we want protection, because we would just as soon not have to go to the expense of contracts and technological protections and things that our users don't like any more than we do. MR. UHLIR: Let me for the record say that Jon Baumgarten of Proskauer Rose just joined us on the panel and let me fill you in on where we are in the discussion. We began the discussion by characterizing what in fact constitutes the strong property rights model. We made comparisons between the European model and H.R. 2281, and the previous version last year, and noted some of the similarities between those two in a number of the provisions. I think we are almost finished in terms of characterizing what we are talking about, so before we get into a discussion of the implications or the needs or the scope of these various provisions, perhaps you may have some comments about the relationship of the Coble bill to the European model. Do you see the Coble bill as something that is equivalent in terms of the protection offered by the European model, or how do you see the distinctions?
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PROCEEDINGS OF THE WORKSHOP ON PROMOTING ACCESS TO SCIENTIFIC AND TECHNICAL DATA FOR THE PUBLIC INTEREST: AN ASSESSMENT OF POLICY OPTIONS MR. BAUMGARTEN: Preliminarily, I would say that there is a new Coble bill as of yesterday. I don't know if that has been discussed here. MR. UHLIR: It was mentioned. We, of course, don't have copies of it. MR. BAUMGARTEN: I don't think it is numbered yet. It is substantially identical to the previous Coble bill. The difference between the property rights model and the unfair competition model I think has always been a bit elusive, in principle at least. I imagine a property rights model is characterized by the fact that if you create it you own it, and that is the end of at least the operative or threshold part of the law; whereas if it is an unfair competition model, something extra would be needed at the outset. In the Coble model, that “something extra” is the element of harm. However, even in the original so-called sui generis approach there is a necessity for some potential adverse economic impact. It was built into the bill from the beginning. Even in the strong proprietary rights type of measure, as defined by the Copyright Act, you end up considering very similar exclusions, limitations, and privileged uses after you establish the cause of action. In many ways the difference comes down to trial lawyers' niceties on who has the burden of proof. If you look up the E.U. Directive, for example, it is pretty much a model in that it says if you create a database, you are entitled to protection, but then the E.U. Directive authorizes member states to create a limited number of exceptions. MR. DAMICH: I just want to make one point. It was also important for Senator Hatch that there was the E.U. Directive. It was important for him that we comply and therefore obtain reciprocal rights and, eventually, a certain uniformity with regard to database protection. MR. UHLIR: As we discussed at the beginning of this session, the Coble bill was a closer approximation of a sui generis property rights model than a true misappropriation or unfair competition model. MR. BAUMGARTEN: I think that depends upon your definition of misappropriation. MR. UHLIR: That is right. I think there is some question about that and I am sure we won't conclusively resolve these distinctions here, but I think it is important to note that there are other forms of unfair competition or misappropriation that are being discussed in the other breakout sessions that have a substantially different scope of protection and set of provisions than the Coble model. MR. DAMICH: I don't want to monopolize the conversation, but I did think of one other thing that I am freer to speak of now than I was when I was on the Senate staff. That is, my own view was that I would have preferred to have had the time to tinker with the prohibited acts, which I personally thought were too broad in the bill that was introduced. In order to alleviate the necessity for a lot of exceptions I thought that the way to go actually would have been amending prohibitions rather than doting on exceptions. That was not Senator Hatch's view, and I was unable to sell that to him, but that was my personal view at the time. MR. BAUMGARTEN: If I could just add one point for the record from the perspective of a private lawyer. The comment that Ed Damich made before suggests that he views unfair competition, as do a number of others, as strictly limited to competition between marketplace competitors and misappropriation as something limited to the NBA v. Motorola model. However, many of us do not feel that those are the hallmarks of either misappropriation or unfair competition. I mean, competition hasn't been a factor in unfair competition for decades. The typical unfair competition is trademark infringements. The necessity for direct competition was eliminated in
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PROCEEDINGS OF THE WORKSHOP ON PROMOTING ACCESS TO SCIENTIFIC AND TECHNICAL DATA FOR THE PUBLIC INTEREST: AN ASSESSMENT OF POLICY OPTIONS those suits long ago, and misappropriation, again, to many of us on the other side, is not typified by the NBA v. Motorola decision, which we view as antitypical in many ways given the history of misappropriation. So I think many of these questions come back to a definition and a perspective issue rather than mere labels, and I think that is where we have to focus our attention. DR. SERAFIN: I have a question of clarification for those of us who are not associated with the legal profession. What is the difference in the definition of harm in this strong protection bill or model and in the unfair competition model? MR. DAMICH: Strictly speaking in the sui generis model, harm is irrelevant. As Jon Baumgarten pointed out, what is relevant is the fact that you have the property right; if someone impinges on that right regardless of harm, you have a cause of action. MR. BAUMGARTEN: But it may be relevant as a defense. MR. DAMICH: Yes, exactly. Under the unfair competition model, as Jon pointed out, other factors come in. The factor that has arisen in the discussions that we had in the House and in the Senate was that of harm. The issue becomes how much harm and harm to what particular market, which is why I brought up the distinction between actual and potential markets. There was also a discussion of whether harm should be modified to mean substantial harm, which was not accepted by Senator Hatch and by members of the committee. So that is the context. MR. JASZI: There are a lot of different visions of harm, and there is no fixed definitional meaning that can be assigned to the term. At one extreme one could imagine a definition of harm that would focus on the kinds of piratical practices that may occur between direct competitors in a marketplace. At the other extreme one could imagine a definition of harm in which any lost sale or revenue from licensing to end users would constitute harm. Presumably there are various points and positions between these extremes. So it is very much a contested category rather than one of fixed meaning. DR. SERAFIN: Presumably in the sui generis case it would not be as contestable. It sounds more like harm is in the eye of the beholder. MR. JASZI: As I said before I wouldn't draw a bright line between the significance of the harm factor in a sui generis approach, where it is technically not an element of the law, and the role that harm plays in the global approach, for example, where any harm to an actual or potential market triggers liability, because although there is clearly a definitional difference, harm is required in the latter case and not required in the former case. The standard of harm in the latter case is so broad that there will be many cases in which qualifying harm can be found and perhaps relatively few cases in which qualifying harm will be absent. MR. LEAVITT: Harm is really the key difference here. Does harm have to be pertinent to violation of the law? For example, suppose someone creates economic harm to a data owner by explaining that this guy is a ruthless owner of data and won't give his information to appropriate users, therefore causing economic impact on the data holder without impacting the data. Now that could be characterized as harm. In other words, does it have to be primary or secondary? MR. BAUMGARTEN: I would like to respond to Peter Jaszi and respond to you, but I will respond to you first. That is a notion that lawyers call collateral harm, and I think there is unanimous agreement among the participants that, like copyright harm from an adverse book review, collateral harm is not harm. In fact, in the House report on the bill that was reported, there is a clear discussion of that and clear illustrations in the scientific community of what collateral harm is—harm that results from activity other than that affecting the competitive value
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PROCEEDINGS OF THE WORKSHOP ON PROMOTING ACCESS TO SCIENTIFIC AND TECHNICAL DATA FOR THE PUBLIC INTEREST: AN ASSESSMENT OF POLICY OPTIONS of the database. So I don't think the collateral harm issue is anything more than a political ploy at this point. I think that there is subsequent agreement that this is not an issue. I want to go back to what Peter Jaszi said. When we started talking I said that we were going to agree with each other for once, but then you made that impossible statement. We have been at this a long time in many arenas, and the one thing we have learned to do is listen to each other. I think in principle there is, as you said, not a big deal to be made out of the difference between harm in the sui generis approach and harm in the unfair competition approach, but in very practical terms from the viewpoint of a practicing lawyer advising clients and dealing with some expert witnesses from the other side, there is a big difference between the plaintiff having to demonstrate harm as a part of accomplishing its case and the defendant having to prove the absence of harm, for example, as an element of its case. There is a big difference in motion practice. There is a big difference in approach to the case. So, I think when the database proprietors accepted Mr. Coble's approach and that of Mr. Hatch, that was a substantial concession. It wasn't a meaningless change. Also, on harm I want to add that we are not writing a clean slate. There is substantial experience in the courts with the notion of the definition of harm in copyright cases under the fair-use doctrine, for example. Peter, you referred to harm being perhaps one lost sale. I don't think the database producers necessarily considered one lost sale itself as harm, but one lost sale under circumstances where, if permitted, that same type of activity could be widespread by tens, hundreds, thousands of people, that is harm. MR. JASZI: I am glad that you bring this practical lawyering perspective because I very much agree that, from the standpoint of the litigator, there is a potential real difference in terms of what you would have to do to make your case under these different standards. From the standpoint of a lawyer advising a client as to how to proceed in making unauthorized use of another's data set I am not sure the difference is so great. MR. BAUMGARTEN: I think it is pretty similar. I think you take it into account when you advise the client. MR. JASZI: And the reason I say that is that the harm standard of the Coble bill is sufficiently broad and at the same time sufficiently indefinite so that as a practical matter I personally would feel very reluctant to advise any client to proceed with any significant use in the face of that standard. MR. BAUMGARTEN: Do you advise every client to undertake fair-use activities under the Copyright Act? You have to make the same judgment. MR. JASZI: But there in the case of fair use I have an accumulation of material that is the basis for at least some guidance. Here, despite the fact that we have copyright cases construing the standard of harm, I would be very reluctant to read the wisdom of those cases, such as it is, into this new context, if only because so much has been made and so much has to be made in order to avoid the constitutional difficulty about the noncongruity of this scheme on the one hand and the copyright scheme on the other. MR. BAUMGARTEN: I think lawyers and judges are constantly reasoning by analogy when you have a new situation where drawing upon analogy is available to you. I agree with you that there is a constitutional issue. MR. JASZI: My conclusion is that the issue of harm is one that will, as a practical matter, chill a lot of use, perhaps justly, perhaps unjustly, but effectively, nonetheless.
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PROCEEDINGS OF THE WORKSHOP ON PROMOTING ACCESS TO SCIENTIFIC AND TECHNICAL DATA FOR THE PUBLIC INTEREST: AN ASSESSMENT OF POLICY OPTIONS MR. BAUMGARTEN: But Mr. Coble didn't leave it at that. Mr. Coble and Mr. Hatch have other provisions going beyond the mere element of harm dealing with fair use, permitted use, whatever terminology. MR. UHLIR: As is the case with any legislation, we can be sure that if we adopt additional protection for databases, these questions will be litigated and a volume of case law will be developed that will clarify these boundaries and resolve some of these issues that are still unclear. I think we have fairly well broadly characterized what the salient provisions are of a strong property rights model at this point, and unless there are any further clarifying questions I would like to move on to the more specific discussion of the issues and, also, to bring in the perspective of the data providers and users in this context. One of the things we want to do is to look at what the status quo is in terms of legal protection and how this additional protection would alter the activities of the data providers and users. Do you find from a data provider perspective that you require this kind of additional protection, or from the user perspective that these provisions would in fact cause certain problems that you may not currently have? We have a number of questions that address different provisions within the model to focus the discussion, but let me first ask the data providers in the atmospheric data model to address generally what you see as the potential benefits and problems of a strong property rights model versus the current situation. In the case of the government data provider, I recognize that in the United States there would be an exemption for the government data, but at the same time you may want to put it in the context of your relationship with Europeans who can protect data in the government sector in many cases using the new database law there. I think focusing it in that context from the government perspective may be useful and perhaps you can begin with some discussion of that. DR. HADEEN: I see both benefits and problems. I see absolutely no benefits, however, as far as the government sector is involved, in changing the current law to the more severe type of situation that we discussed this morning. One of the things that has developed in this country, at least in the atmospheric sciences over several years, is that there has been a fairly good relationship between the government, the not-for-profit users, and commercial users. When you put it in the perspective of the World Meteorological Organization's (WMO) Resolution 40, under which some countries are withholding certain data, it turns out that here again the United States plays a major role. Under U.S. policy, and I believe I am correct in this, at least while I was still active with NOAA, we are putting all of our data online and making them available to other countries. The United States is a leader in this particular area. The rest of the world's climate and meteorology communities do not know political boundaries, and I believe that by setting the example of open exchange of information that in fact other countries will follow the United States' lead in many of these areas. There may be some current changes to these policies now, but in my past experience many countries have followed what we do in these particular areas. I think the status quo, following Office of Management and Budget (OMB) Circulars A-130 and A-110, provides some good guidelines for the distribution of data at the cost of reproduction and this type of thing. I think that if you implement this database legislation you likely will be looking at modifying those circulars as well because they are all in conflict. MR. UHLIR: Are there any comments on the public-sector data issues? DR. LAMBERT: Richard Lambert from the National Institutes of Health. I think you can analogize to a certain extent to some of the problems we have had with so-called “material transfer agreements.” In these cases we are not transferring data, but there would be an
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PROCEEDINGS OF THE WORKSHOP ON PROMOTING ACCESS TO SCIENTIFIC AND TECHNICAL DATA FOR THE PUBLIC INTEREST: AN ASSESSMENT OF POLICY OPTIONS equivalent type of problem to giving someone access to a database where the licensor agrees to give you some research material but you have to give the licensor rights to any subsequent inventions you may make using that material or pay a royalty. It's a real problem, and I see this sort of thing happening with databases. MR. UHLIR: This line of question is going to be discussed in detail in the breakout session on government data, so I don't want to get into too much detail with regard to government data policy in this session, except for the relationship with the European approach. DR. LAMBERT: My point was not about the government per se. This happens among all not-for-profits, for example, where they are using these types of material transfer agreements with each other. DR. ZEVIN: Susan Zevin from NOAA. I have a comment following up on what Kenneth Hadeen said. I am in charge of the data and information service for NOAA, which oversees the data center in which Dr. Hadeen was so active. He is really an expert in this area. I think the issue that the U.S. government has been dealing with on WMO Resolution 40 is the extent to which the government has been obligated to support the implementation of restrictions on data that have been imposed by the Europeans. This is a little bit different from just whether we implement our own policies or not. But without strong property rights legislation of our own, whether we are obligated to help the Europeans implement theirs or whether there is strong property rights legislation passed here, does that in fact require us to implement such restrictive policies on behalf of the Europeans? That to me is where there is a major distinction. Right now we, in the spirit of OMB Circular A-130 and in the spirit of government policies that already exist, try not to restrict access quite so much, basically on behalf of our competitive sector—our private sector (even though they are really not happy with what we have done so far). But if there then is strong property rights legislation on the books, I don't see how we would be able to support their efforts. MR. UHLIR: Let us ask the lawyers here. If the United States were to adopt legislation that is essentially satisfying the reciprocity requirements of the E.U. Directive, would that in fact either require or at least put pressure on the U.S. government to enforce the rights of the European government data providers that currently are contrary to the U.S. government policy of data dissemination? MR. JASZI: Could I ask, before trying to answer that, what kind of change in government policy would help to facilitate the goals of the Europeans? What would you do differently than you do now? DR. ZEVIN: I will answer that briefly and then defer to some of the commercial-sector colleagues here who are specifically affected. The big issue that was on the table with European government data providers was that a lot of their data were leaking out onto the Internet. Once the data are it is out there, they are out there, and what the Europeans had wanted the U.S. government to do specifically was to intervene and not allow any of their information to go on the Internet. We wanted to put it online and then have some means which would make sure that there was appropriate attribution and “no commercial redistribution back to the country of origin,” which is the key phrase. At NOAA we had just recently made a decision to go ahead and put the data on the Internet with a button for the user to click on that says, “I have read this and I am not going to violate what they don't want us to do.” I would see a much more restrictive approach, however, if in fact there was legislation on the books that wanted us to put those practices in.
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PROCEEDINGS OF THE WORKSHOP ON PROMOTING ACCESS TO SCIENTIFIC AND TECHNICAL DATA FOR THE PUBLIC INTEREST: AN ASSESSMENT OF POLICY OPTIONS DR. NEAL: I was a member of the U.S. delegation to the WIPO Diplomatic Conference in December 1996 and participated in the discussions and treaty negotiations. Also I provided testimony before the Coble committee last year on the proposed database legislation; and one of the things I did in preparing for today's discussion was to go back and reexamine some of the concerns that I raised with that committee in that initial legislation proposal. I think some of the same issues persist from the perspective of the university library and of the user community. One of the fundamental concerns is that there is still a search for a compelling reason why this type of legislation is necessary. We work on a day-to-day basis with a very robust, expanding, and very successful database publisher community and have found that the copyright laws, contract laws, and technology developments provide a level of balance which is meaningful in our experience both to the user and the publisher community. We are also concerned because we find ourselves in the university, or in a public library setting, playing the role of bringing information resources into that community, identifying them, negotiating for them, and licensing them. We very often pay for them on behalf of the research community. We organize the data and facilitate access, including the purchase and housing and manipulation of the software. We provide the interpretive systems for the user community using research databases, and we increasingly are taking responsibility for long-term access and archiving of that information. This legislation touches us in prospectively negative ways at each point of that mediation and process continuum that we provide for our not-for-profit research, education, and library communities. One of the concerns I brought to the discussions in Geneva was how to take concepts which are well ingrained in the American tradition, in terms of our constitutionally based copyright law as regards our fair-use traditions, and try to harmonize those with other legal traditions that don't have those same values. For example, members of the public-interest delegation from the United States worked very hard to get the concept of fair use implemented into the WIPO digital copyright treaty. They were able to get it into the preamble. For many of the participants from non-American regions, this was fundamentally a new concept, a real breakthrough in terms of getting them to think about these types of exceptions to copyright. In the emerging database regime, we need issues of definition resolved. We are not quite sure what a database is anymore. We are not quite sure what a market is and what interference or underlying harm to that market is. We need to understand how fair use will be applied in this setting. Are we going to take the same concepts and applications of fair use within the copyright area and carry them over to this new regime of protection? Universities find themselves in a very schizophrenic situation right now and libraries do, too, because we are reaching aggressively beyond our traditional markets and our traditional roles. We obviously are not focused anymore on teaching students who appear at our doors. We are developing instructional capabilities to address a global market. The Johns Hopkins University, for example, now gives more degrees to students who never set foot on any one of our campuses than we do to resident students. You don't think about Johns Hopkins in that context, but that is a fact; and we need to be sure that as we pursue those capabilities, we have a legal framework that enables us to extend that educational mission beyond the borders of our campus with responsibility and creativity. We are also very clearly a database creator, a database vendor in many ways. One of the things I have been very aggressively involved in is something called Project News where we have taken the 45 journals published by the Johns Hopkins Press and are marketing them on a
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PROCEEDINGS OF THE WORKSHOP ON PROMOTING ACCESS TO SCIENTIFIC AND TECHNICAL DATA FOR THE PUBLIC INTEREST: AN ASSESSMENT OF POLICY OPTIONS global basis as a database. The provision that we have made in our license agreement is that any university or college or library that contracts for that can do anything they want with that database in the context of their own university as long as they don't use it for commercial purposes. We also are very aggressive in what I call meta-database development, in which we are increasingly taking responsibility for organizing for our community an aggressive linking—knowledge management linking —database, enabling them to understand what the Internet world looks like in terms of their specific discipline or subdiscipline. That is a form of database development being created and extended to our community. Perhaps most important is that the library has taken on a very powerful role as a consultant for the university community in trying to understand and apply copyright law. Yes, we have lawyers on our campuses and in some cases we even have copyright lawyers on our campuses. Sometimes we wish we had copyright lawyers from other campuses on our campuses, but we very often find ourselves in an application mode trying to help faculty and students understand the balance that exists within copyright. What I see in this database initiative is something that really throws that whole educational experience and our ability to interpret and apply it effectively up in the air. I still think the fundamental issue for me is whether there is a need for this legislation. Can it be handled within the context of existing copyright contract and technology development? If we are going to have legislation, let us make sure that the exemptions as they have been gradually developed are well defined and are supportive of what we are trying to do in the university setting. MR. UHLIR: Thank you. I will open it up for questions and comments. MR. BAUMGARTEN: I am not sure where to begin. You asked whether the existing regime is insufficient. I think the answer that the proponents of increased database protection have repeatedly given continues to be that the existing regime is insufficient. Both as eminent a professor as Jane Ginsberg and as eminent a government official as Marybeth Peters have acknowledged that there is a clear gap in the law. Dr. Brammer explained a situation where his company cannot rely on a contract. Even in cases where he can rely on contracts, if someone not bound to that contract gets a hold of the data, the contract is useless. The technological protection, to my way of thinking, is a myth in that everyone goes around it. You can encrypt, but the fact is that it typically provides very limited protection because it only provides protection against intruders, putting aside the fact that people can break encryption. Even if the database owners use successful encryption, it only protects against misuse by intruders. If the owner is worried about misuse by end users or by customers, no matter how well intentioned, if the owner is worried about a library or a university or a not-for-profit organization or a for-profit organization redistributing the data on the Internet or otherwise, encryption doesn't do any good because it has to be decrypted for that user to get his hands on it, and once it is decrypted that is the owner 's point of exposure. So the whole myth of the sufficiency of encryption has always rung rather hollow. The copyright law just doesn't work well. You accuse this bill of lacking predictability, but you should see what the Copyright Act is like, particularly in the database area. Although it started the problem, Feist really isn't the big problem. The Feist decision left a lot of us with a fair degree of comfort. Some of us were more sensitive to what would happen than others, but the Supreme Court said that the vast majority of databases are going to meet that standard. But
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PROCEEDINGS OF THE WORKSHOP ON PROMOTING ACCESS TO SCIENTIFIC AND TECHNICAL DATA FOR THE PUBLIC INTEREST: AN ASSESSMENT OF POLICY OPTIONS then we have decisions in which courts are saying that anything you want to protect is a method and is unprotectable. We have the Warren case. And in the recent West cases, no matter what you think about the protection of legal materials, the levels of originality imposed by the courts in those cases have been higher than I suspect the Supreme Court ever intended. So the certainty of copyright protection of databases currently is very tenuous. Apart from the fact that the more comprehensive a database is the more useful it is generally, the less original a database is the more it is useful to the scientific community but the less it is protected by copyright. On the questions of clarity and definitiveness, I have always been a little confused by those who pillory the bill for failing to have fair use and at the same time demand certainty. There is nothing more uncertain than the fair-use doctrine. That is both its weakness and its greatest strength. It is weak because it gives little guidance and it is strong because it allows it to be adapted and conform to a variety of circumstances. You cannot have it both ways. You cannot demand certainty of a bill or a treaty or an E.U. Directive and at the same time demand that it simply adopt the fair-use doctrine as it is put forth in the copyright law. You have got to go one way or another. I think Congress has made strides to solve the definitional issues. There have been changes in the definition of database. There have been substantial changes in the definition of potential—for example, in the Senate version that Ed Damich was deeply involved with, which included maybe even more substantial changes in the concept of potential market than the proprietors initially thought they would be able to accept. That is why we have a system to deal with problems like this; we should not throw out the effort because there are some problems. At the end of the day there are always going to be definitional questions. Congress writes in broad terms, people make reasoned judgments, and courts test the validity of those judgments. It is not unique to the database area, and it affects many more substantial business and life decisions of people than just database owners. The antipathy that seems to be expressed toward licensing is unfortunate. I am not going to apologize for the fact that you are going to simply have to take the time to read license agreements. You read or you don't read agreements when you buy your house, or when you buy your car. If you don't do it you have your lawyer do it. If you don't want to make that effort and spend that time, don 't put the burden on the proprietor community of trying to solve that problem. DR. BRAMMER: I agree with that. MR. BAUMGARTEN: Also, from my understanding, and I am just a poor country lawyer, is that there are substantial changes being made in licensing regimes today that go a long way toward meeting user demands. I understand there are licenses, experimental at this stage perhaps, between Elsevier Science and the Ohio Linked Consortia that have been generally applauded in the university and the scientific community; and I think responsible database publishers and database producers are going to find ways to meet their users' demands. Neither Dr. Brammer nor the much-reviled Elsevier, whom I represent, are in business to offend their customers. They are in business to find ways to put good useful information together and make it usable. They are not in the business to retain people like me, and I will give you my business card later, to draft cute tricky contracts to make your life miserable. That is not the way the business world operates. Again, I don't understand the notion that these licenses and agreements are terribly unclear and complex or the desire to have a provision that says that you cannot contract away
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PROCEEDINGS OF THE WORKSHOP ON PROMOTING ACCESS TO SCIENTIFIC AND TECHNICAL DATA FOR THE PUBLIC INTEREST: AN ASSESSMENT OF POLICY OPTIONS fair-use privileges when those privileges are complex and unclear so that no one knows what has been agreed to in the agreement in any event if you add that provision. I also think there will not be a bill that tries to regulate contract terms. That is, I think, anathema to the proprietor community. If that is the real objective here, to put a poison pill in the bill, I don't think it will succeed. I think the members of the Senate will understand the problems. That doesn't mean that there should be an unrestrained regime of contracting, but there are remedies in the law already dealing with unconscionability, for example, to deal with grave misuses of public policy. I think that covers most of the points that were made. MR. FULKER: Just a couple of questions regarding these remarks. I am a little confused with the clarity of the benefits of this legislation based on what I have heard. For example, Robert Brammer said that he supported the bill but said that the business practices would not change. With respect to the fair-use privileges, I think that the clarity that I might be seeking would be that it won't make fair use somehow more restrictive than at present, and I haven't seen anything that assures me of that. So the confidence you have that the world would be better with this bill is a little puzzling to me. MR. BAUMGARTEN: First of all, I think we can look at the new Coble bill, for example. Mr. Coble announced in North Carolina yesterday that the two changes in his bill from last session had to do with two issues that were mentioned prominently here today. One is the so-called “perpetual” protection problem, and I am not exactly sure what he did with that; and the second deals with giving greater comfort to the fair-use community. So, I think there has been some improvement. Frankly, I am one of those people who believes that there was substantial fair use in every version of his bill. It was a little hard to find, but all three of the fair-use factors were in there, and the harm factor was in there in a way that is much more burdensome to database proprietors than it is to copyright proprietors. I hope the bills will provide you that. I don't object to that kind of clarity. There is some comfort or assurance that there will not be grave dislocations of the way the scientific and educational communities have been doing business up to now. I don't think we think the bill does that, and I think you should have the comfort that it will not do that, and if making the fair use or permitted use of parameters of the bill more clear, if that is the clarity necessary, I hope Mr. Coble perhaps might have already accomplished that yesterday. I have a reputation as being rather hard nosed and some of my clients have reputations as being somewhat difficult, but I will tell you that it is no secret that we were the prime proponents of anti-fair-use provisions in this bill because it doesn't make sense to fundamentally change the way scientists and educators do business that has been so successful. Why change it? On the other hand, Elsevier Science is as much a part of the scientific process as any bench scientist is, and I think you all know that is true. Science isn't science until it is published. Bad science is a result of bad data. So I think perhaps that this level of clarity will be solved. If clarity means knowing specifically what you can do in individual cases then that is very hard. Also, I have been puzzled over the years by the library community because I used to do a lot of antilibrary work for the publishing community. I sued New York University, I sued Texaco, and I sued Kinko's all successfully. DR. NEAL: Not all of those were library cases.
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PROCEEDINGS OF THE WORKSHOP ON PROMOTING ACCESS TO SCIENTIFIC AND TECHNICAL DATA FOR THE PUBLIC INTEREST: AN ASSESSMENT OF POLICY OPTIONS MR. BAUMGARTEN: No, and the debate is over the 1976 Copyright Act. One of the dichotomies that we frequently have found that has always puzzled me is that the librarians in the field would say, “We want specificity. Tell me when I go to the photocopy machine how much I can copy and how much I can not.” When we tried to negotiate that with the American Library Association or the Special Libraries Association we were told, “We won't negotiate specifics because any specific application of these doctrines will give up the inalienable fair-use rights that are found in the Magna Carta and every document since.” So, clarity depends on what your purpose is, but I certainly hope and agree and join you in saying that there should be an aspect to this bill which gives you the clarity that for the most part the existing activities as we know them are not going to be the subject of major dislocations. DR. BRAMMER: Let me jump in on just a couple of follow-up comments here. I certainly agree with Jon Baumgarten on the license issue. We have worked very hard to make our license agreements clear. We write them in English as best we can in reasonable type size and it is something we continue to work on with our customers. We are not going to stay in business by continuing to confuse and irritate our customers. This is something that we and a lot of other companies work very hard on, to make things fairly specific and mutually advantageous so you have some basis for a business relationship. To follow up on what David Fulker said, I don't know whether I support this legislation or not. What I know is, I support the notion of property rights, clarity, and hopefully some simplification in the international regime, which I think is critical to not only my business but a lot of others. A final point I will make is about technology. I certainly agree with what Jon Baumgarten said about encryption. It is great for certain things, and it is irrelevant to a many of others, but it is not a big part of our business practice. There are other security and authentication and authorization techniques quite outside of encryption that are actually more important. In addition to the other inappropriate users you mentioned, there are on occasion, your own employees that compromise your information. These are all things that you have to watch out for in encryption, and other forms of technology may or may not be relevant. I guess I would say the same thing about a lot of this legislation. It may or may not be relevant. If we find a customer misusing our data we have a business decision to make. You don't stay in business too long by suing lots of your customers. If it is flagrant enough or egregious enough that you are better off without that customer, then you may well take action, but it is something you think very carefully about doing. There are plenty of cases of misuse of our or other information that you judge somehow to be relatively minor or not terribly material that you just let go because of the press of everything else, and it is not worth bothering with. To the extent that it helps limit the activities of basically honest people to doing the right thing, I think the legislation would be useful. I don't want to set my expectations too high that it is going to solve all the problems, but if it solves a few of them, that is fine. You won't know whether you have unintended consequences until it actually goes into effect. DR. NEAL: I want to clarify my comments. I did not intend to communicate that the legislation should attempt to deal with the license question. What I suggested was that licenses present us with another way for a database producer and a customer to work out an arrangement for the use of that information, and we have had some very good progress over the past couple of years in reaching some agreement on principles whereby those license agreements will be drafted and implemented.
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PROCEEDINGS OF THE WORKSHOP ON PROMOTING ACCESS TO SCIENTIFIC AND TECHNICAL DATA FOR THE PUBLIC INTEREST: AN ASSESSMENT OF POLICY OPTIONS In terms of the specificity of fair-use guidelines, I think the library community came out of the 1976 Copyright Act with a real commitment to specificity in terms of what the working librarian or the working educator could do. However, our experience with that was not really very positive in the sense that those guidelines, which at least initially were thought to be floors, became in many ways interpreted as ceilings by ourselves. It wasn't imposed on us. We did it to ourselves, so to speak. As we have moved in the past couple of years into a process of trying to migrate these ideas of guidelines into the digital environment, there has been a resistance to setting up something specific in an environment that is changing very rapidly. We felt that it was premature to really put down on paper and provide working librarians with guidelines that perhaps would be meaningless. MR. BAUMGARTEN: We agree with that, but then don't come back and condemn us for having nonspecific standards, if we both agree that it is premature to be specific. DR. NEAL: As you noted, there has been some progress in giving the fair-use provision of the legislation clarity and prominence from how it was originally proposed. I think that has been a very positive change. MR. JASZI: A couple of comments. I am not sure that the tension between wanting specificity on the one hand and wanting generalized fair-use language on the other hand is quite the inconsistency that Jon Baumgarten suggests. It seems to me that it is perfectly consistent to say that one wants greater specificity with respect to definition, that one wants greater specificity with respect to the description of the subject matter, and that one wants greater specificity with respect to the standard of harm—whether or not that specificity can in fact be achieved—and at the same time want a set of provisions that in some way tracks the generalized fair-use provisions which, on the whole, have been rather successful in the context of copyright law. So I don't see the inherent contradiction in saying that, on the one hand, with respect to some of the more novel provisions of this legislation, one wishes for greater specificity, and on the other hand, with respect to the issue of categorical or residual exceptions such as fair use, one wants to preserve the flexibility of the existing system. I also would like to say one thing about fair use, or the way in which fair use or however we want to label it could figure in a strong form of database protection as one category only, but nonetheless a category, of exceptions or exemptions. We have talked a lot today about the desirability of fair-use exemptions in favor of science education and other not-for-profit cultural things, but I think it is important to remember that the copyright fair-use doctrine has functioned not only in the domain of not-for-profit science education and cultural activity, but also to a limited, but very important extent nonetheless, in the commercial domain as well. When I was looking at the questions and thinking about how to respond I looked at the first question for this session, the question that asked how our own practices as users of databases would be affected by this legislation. I am a lawyer and a law teacher so I asked myself in what sense do I use databases, and of course the answer is that I use databases of legal information. I am tremendously fortunate to have access to two very powerful and in many respects excellent such databases, the LEXIS-NEXIS database on the one hand and the Westlaw database on the other hand. One of the reasons I am fortunate is that they are in competition, and they are constantly trying to outdo each other by becoming more comprehensive, by adding new features, and by making retrieval more convenient. It is a very beneficial situation to me, and I know something else. I know that had this strong form of legislation that we are talking about been in effect when the enterprise of the LEXIS-NEXIS database was first conceived, and when
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PROCEEDINGS OF THE WORKSHOP ON PROMOTING ACCESS TO SCIENTIFIC AND TECHNICAL DATA FOR THE PUBLIC INTEREST: AN ASSESSMENT OF POLICY OPTIONS that database was created by keying in substantial amounts of public-domain information from published volumes of the West national reporter system, that LEXIS-NEXIS in fact would never have gotten off the ground. So in my view we owe the robust competition between these two databases, which benefits me as a consumer and every other user of those resources as well, to the fact that at a particular historical moment this kind of database regime was not in place. Now, that is an example of how the consumer interest in commercial databases might potentially be disserved. A piece of strong-form database legislation did not extend appropriately to commercial, as well as noncommercial, data. MR. BAUMGARTEN: I will agree substantially with Peter Jaszi on the question of fair use for for-profit organizations by calling it fair use or whatever term that is similar, but there is a problem. There is a technical legal problem with doing it, and that is as I mentioned earlier there is a substantial difference between Article VI and Article IX of the E.U. Directive. You could probably do that under Article VI, but under Article IX it becomes a bit more problematic. In this regard, I think the one clarification that should be made in an otherwise rather excellent legal presentation of materials by the Copyright Office for this meeting is that document suggests that it is Article VI when it is really Article IX, and Article IX could be read not to permit doing that. However, I think in the Senate negotiations that Ed Damich presided over we tried to persuade them that perhaps that could not be done, but we perhaps knew in our hearts that something would have to be done, and there are substantial segments of the database publishing community who are part of the larger publishing community and affiliated with publishers of histories and biographies who use databases for their research that know that there has to be a reasonable limited amount of permissive use for the for-profit community. Exactly how to define that is the issue. I think Peter Jaszi indicated in his comments that he agrees that it probably needs to be more limited in some ways than the exception for the not-for-profits, but certainly the ability to robustly involve yourself with secondary research materials is not limited to the not-for-profit community. MR. UHLIR: This issue is especially important in the sole-source context. In Europe, when the Directive was first drafted, there was a compulsory license provision attached to that which was dropped in the final version. At the same time in Europe there is a tradition of judicial compulsory license requirements, which was shown subsequently in the Magill case. If we were to adopt a similar strong property right here or a similar legal approach, our legal tradition does not favor such a remedy. MR. BAUMGARTEN: I wouldn't agree with that. Look at ASCAP and BMI. They are both subject to de facto compulsory licenses as a result of judicial procedures. In the recent West decision, to come straight to databases, their “star pagination” regime is subjected to a form of compulsory licensing in the settlement agreement and consent decrees. There also is a strong judicial tradition of compulsory licensing in the patent area. Copyright scholars for years have suggested that withholding injunctions was the way to deal with the photocopying problem, and that is just another name for judicial compulsory licensing. So I don't think it is quite as weak in the American judicial framework as you would suggest. Now we have something like nine compulsory licenses in the statute. MR. JASZI: I would agree with the qualification. I think that it is inevitable that if strong-form data protection were enacted without adequate provisions for exceptions and limitations, one would see progressively greater application of competition law principles in this area and one would probably eventually see the growth of additional judicial compulsory
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PROCEEDINGS OF THE WORKSHOP ON PROMOTING ACCESS TO SCIENTIFIC AND TECHNICAL DATA FOR THE PUBLIC INTEREST: AN ASSESSMENT OF POLICY OPTIONS licensing. I am less sanguine perhaps about how quickly one would see these developments. Knowing the little I do know about the glacial pace at which the application of competition law principles in copyright, not in patent but in copyright, has developed I am skeptical about how quickly one would see a judicial correction of whatever overbreadth were built into such legislation in the form of compulsory licensing. I think it might be a very protracted and painful period of transition. MR. DAMICH: I want to just allude to the issue about the definition of a database. As has been mentioned so far in this session about the possibility of anthologies being considered as databases, there is an implication in Peter Jaszi's reference to West that, aside from the star pagination, a collection of cases might also fit the definition of database. Just to give you some historical insight, the Coble bill was called “The Collections of Information Antipiracy Act.” The Hatch staff, in looking at that language and in receiving the comments of people during the negotiations, felt that staying with the name “collections of information” was an invitation for a very broad reading that would go beyond the concept of “database,” even though the concept is not crystal clear and is still hazy around the edges. We felt that when people see the word “database” they think of something narrower than a collection of information, which is not a term in common use, although it is certainly a term that has been used before in intellectual property circles. One of the improvements we thought of was to change the name of the bill in the Senate version to the “Database Antipiracy Act” in order to psychologically create that scene where courts (and I assure you very few courts except the Second Circuit have the experience in intellectual property statutes) seeing the word “database” would think of something that was a collection of discrete facts, and would go in that direction, rather than collection of information, which would tempt them to call it all kinds of other things. I don't know if it would have achieved that, but that is what we did, and actually I would like to ask Jon Baumgarten, since he has a copy of the Coble bill, if Congressman Coble went the route of calling it a database or did he stick with collection of information? MR. BAUMGARTEN: I think he stuck with collection of information. MR. JASZI: The question though, isn't it then the definition of “information?” If information is defined restrictively then the effect, the psychological effect that you wanted to achieve, is reinforced by statutory language; and if on the other hand, information is defined broadly, then it seems to me that the effort has been substantially for naught. MR. DAMICH: Yes, but didn't “information” in the bill talk about discrete facts or collection of facts or something like that? DR. NEAL: In the academic vernacular, database is becoming increasingly anything that is presented in a computerized fashion. MR. DAMICH: It says, “Bringing discrete items of information together.” DR. NEAL: But then there is the definition of information. PARTICIPANT: It included “works of authorship,” and so a book is a database. PARTICIPANT: That is what we were concerned about. What about a collection of books? MR. BAUMGARTEN: A physical collection of books? DR. NEAL: No, an online collection of books; is that a database? MR. BAUMGARTEN: What do you mean by a collection? DR. NEAL: The full text of 100 books. MR. DAMICH: As opposed to the titles, which you would say would be a database, right?
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PROCEEDINGS OF THE WORKSHOP ON PROMOTING ACCESS TO SCIENTIFIC AND TECHNICAL DATA FOR THE PUBLIC INTEREST: AN ASSESSMENT OF POLICY OPTIONS DR. ZEVIN: Is it the catalog that is a database or is it the collection of books itself? DR. NEAL: You see, it is becoming more of a moot concept because we may present entree through a citation database, which points to a full-text database. MR. BAUMGARTEN: They are both databases and I see nothing incongruous by protecting with this bill what we are trying to protect, which is the effort, labor, and investment of putting together finite data on the one hand, or the same labor, effort, and investment in putting together a bunch of full-text sources on the other. I don't see anything incongruous in saying that an anthology should be protected under this bill, because what we are looking at is not the content but the effort required to bring it forth in a database, or a data aggregation in an accumulation or collected form. MR. JASZI: I don't think it is incongruous, but it is very broad. DR. NEAL: I would say that just the range of interpretation applied here demonstrates that these terms are confusing. MR. DAMICH: I was just saying, historically, where we and Senator Hatch were coming from; we were focused on a more traditional definition of database. I think Jon Baumgarten logically can argue for something broader, but the sympathy from hearing all the negotiations was with the narrower definition of database. MR. BAUMGARTEN: But there was an adjustment made in the definition of database, which attempted to make clear the difference between a history book and a database of historical information, and that goes to the purpose for which it was brought together. I don't know if any of you are Patrick O'Brian fans but I use his naval history books. I will look at the index and try to pick up a date that something happened but by and large the history book isn't put together for that purpose. It is put together to tell a narrative story, and the history book is not intended to be a database. DR. NEAL: But what if I compiled a database on naval history and included O'Brian's works as part of that database? MR. BAUMGARTEN: If you take any one of the books, you are not violating the law. However, if you take the result of accumulating them and putting them together you are. MR. JASZI: But by the same token, given that definition, a journal is still a database of articles and a systematic compilation, and West is still a database of cases. MR. BAUMGARTEN: Yes, I would say that a journal is a database. DR. LINN: A single book could be a database if you present it electronically with a search function. It then functions like a database even though it was originally put together to tell a narrative story. MR. BAUMGARTEN: I think there is a limit to how much we are going to be able to solve the argument that anything is a database if you look at each number or each letter, and I think this came out in Ed Damich's draft. We attempted to deal with that, and I think it is going to have to take the traditional expedient of legislative history to make that a little bit more clear. DR. NEAL: I think one of the issues in the library community is that I am spending 20 percent of my budget now on electronic information, which our vernacular has defined as databases, and as that progresses over time and 10 years from now I am spending 80 percent of my budget on electronic information databases, what set of laws will apply, the copyright law or the database bill? MR. BAUMGARTEN: I don't think there is any intent to attempt with this legislation to back-door something. It is not the intent of this bill to say that because a journal is now a database that if you take a single article that we are going to call that a substantial part of the
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PROCEEDINGS OF THE WORKSHOP ON PROMOTING ACCESS TO SCIENTIFIC AND TECHNICAL DATA FOR THE PUBLIC INTEREST: AN ASSESSMENT OF POLICY OPTIONS database and attack you for digital document delivery under this measure if it doesn't have an equivalent distinction. That is just not our purpose. MR. UHLIR: We are at the end of our allotted time, but I have one clarifying question relating to the definition of database. When I was in Holland in September at a biotech meeting that related to our issues, there was an assertion there that raw data collections such as original observational satellite raw data were not considered a database under the E.U. Directive, and I thought that that was exactly the kind of thing that was noncopyrightable as a database and that was one of the kinds of products the Directive was designed to protect, since it wasn't protectable otherwise. MR. BAUMGARTEN: I would agree with you. Someone was perhaps trying to explain that what is protected is the database and not the data and somehow the discussion got off the point. MR. UHLIR: But this I think is an important point because for researchers, in particular, raw data sets are the most valuable material for research purposes which heretofore have not really been protectable, certainly not under copyright; and therefore since this law would in fact apply to raw data that are not generally of great market value or commercial value because they are only usable by experts in research, it could in fact have an inordinately chilling effect on research uses. That is one issue in terms of the potential impact on research. Whether that in fact would happen in implementation is debatable, but it certainly could be applied to such raw data; and even though they wouldn't normally have commercial value generally, they certainly have value to the research community and could be used to limit access by researchers. MR. JASZI: To me that raises a set of questions we obviously didn 't reach and aren't going to reach now and that is what effect the thoroughgoing commodification of research findings may have on research practice. I think I accept that there are many people in the research community who as a whole would simply, for preference, not have any of this—not have the rights in their own findings and not have to license the use of others' findings. But if in fact this set of rights is given by statute, I think that it would be worth thinking about what the inevitable involuntary consequences of this for research practice are likely to be. It strikes me at least that universities will find it difficult to forego the potential revenue streams which will be available to them, whether or not they wished to have them in the first case or not, as a result of this set of developments, and so I think the concerns about commodification are very real ones and not necessarily because anyone has bad intent with respect to the issue. DR. ZEVIN: With regard to the weather and climate community in this country, they get their data from the U.S. government. If, for example, they do a particular processing or reprocessing of the data, then what are their rights under the law? First, because they got the data set from an unrestricted source, would they then not be allowed to invoke restriction? And second, how would the law relate to the E.U. Directive? Right now our scientists are being asked before they actually enter into any scientific collaboration with European governments to agree, under penalty of being ostracized and never being allowed to enter into any research projects again, to whatever restrictions and provisions the European governments place on them. So now you are getting into a science war as it were. MR. UHLIR: Both of these questions are being dealt with in the government data breakout session. MR. LEAVITT: First of all I think some of the differences between what would be considered database information and not narrative was adjudicated in the Gerald Ford
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PROCEEDINGS OF THE WORKSHOP ON PROMOTING ACCESS TO SCIENTIFIC AND TECHNICAL DATA FOR THE PUBLIC INTEREST: AN ASSESSMENT OF POLICY OPTIONS autobiography case—which sections were copyright protected because they were thoughts or illustrations and which were facts of history. It was not adjudicated, but certainly argued. MR. BAUMGARTEN: That is argued in a lot of contexts. MR. LEAVITT: I have been a little surprised—and now I am speaking as a participant rather than as a rapporteur —at the narrowness of our approach here in looking at it. As Peter Jaszi pointed out, you have to view this along with the implications, rather than just the specifics of the restrictive legislation. I would like to have heard a discussion of some novel ways to mitigate some of the impacts of these new laws. An example that no one has brought up or discussed is the “use it or lose it” provisions of rights. In other words, copyright is often used to hoard and restrict information rather than just protect ownership. One of the things it means is, I have got it, and you “ain't” going to get it, which is also a property of ownership. Nowhere do I see any avenue to say, “Look, you have the rights and ownership of this which I will view as first rights of refusal. If you have got it and you justify its value, go ahead and use it and realize the value or else lose it.” I have never heard anyone bring these matters up and I would like to hear them. MR. BAUMGARTEN: I think we have had a limited amount of time. My response to your last question is, Who decides what the reasonable value is? MR. LEAVITT: The same people who would decide in 15 years. MR. BAUMGARTEN: So we are going to have someone else deciding what a reasonable value is? MR. UHLIR: I am sorry we are out of time. There are a lot of other things that we could discuss and should discuss, but we will do that some other time.
Representative terms from entire chapter: