Congress weighs bill to protect data ownership

Not everyone is happy
about the way that the Internet has expanded the ability to find, use and download
information from all over the globe.


Some database owners worry that the Internet and the law have combined to undermine
their ability to profit from information products. In response, they have partially pushed
through Congress a new database protection bill that could affect the price and
availability of data.


Such data often is derived from government sources, so this House bill has the
potential to change the frequency and characteristics of information requests made to
agencies.


The new legal protections will not be available for compilations of information
gathered, organized or maintained by a federal, state or local government. Federal
agencies have never been able to use copyright to control the use or distribution of
agency information products.


The policy objective has always been clear. Federal government information should be in
the public domain. Stopping federal agencies from controlling databases is welcome, but it
is not really new because of the existing copyright law prohibition.


The House bill, HR 2652, would extend the policy against government control to state
and local governments. This is something new because nonfederal governments can copyright
information today. The House bill would expressly prevent them from using new database
authority. State government copyright can seriously impede public access to government
information. Many believe we need to restrict state government control over information.
If so, this bill helps.


The bill would create a so-called sui generis protection, a new form of intellectual
property right enabling database owners to prevent misappropriation of compiled
information for 15 years.


Why doesn’t existing copyright law do this? The answer comes from Feist
Publications vs. Rural Telephone Service, a 1991 Supreme Court case. The court decided
that a compilation of information that did not reflect at least a minimal spark of
creativity could not be protected by copyright. A telephone book with names in
alphabetical order is an example of a useful but unoriginal data compilation.


Before the Feist case, a compilation could still qualify for copyright under a doctrine
known as the sweat-of-the-brow rule. If someone worked hard at collecting information,
copyright law would sometimes recognize the effort even if there was no creativity. Still,
for many databases, copyright law affords plenty of legal protection.


The Internet’s contribution to the controversy is both linguistic and substantive.
Something that was merely a compilation a few years ago is now a database in modern lingo.


More importantly, the Internet makes it easy to copy and reuse a compilation. No one
was likely to copy page after page of a printed telephone book. But PCs, scanners and
networks simplify the task of downloading, duplicating and transmitting a gigantic
database.


U.S. database owners have also been encouraged in seeking legislation by the European
Union, which has already adopted new protections for databases. HR 2652 would provide
similar policies.


So do databases need new legal protections? I remain unconvinced that there is a
problem that justifies legislation. Despite the capabilities of the Internet, database
owners can use many existing legal and technical tools to protect the value of their
products. The lack of protection has not prevented or discouraged the creation of new
databases.


I don’t entirely dismiss the concerns of the database owners, however. They have
an argument, but they just haven’t proven their case so far.


The risks involved with hastily creating new types of intellectual property are
apparent from the lengthy list of exceptions in the bill that the House passed.


These exceptions try to prevent database owners from using the broad new authority to
gouge the public, stifle competition or interfere with the flow of research, educational
and scientific information. Although these savings provisions help some, they point to the
dangers that an overly broad law would create. When a new legal principle needs so many
qualifications to protect against abuse, something is wrong.


It is not clear what will happen to the bill. The Senate will decide whether to move
forward this year. The 105th Congress is almost over, and it wouldn’t hurt to leave
this issue for the next Congress to consider. 


Robert Gellman, former chief counsel to the House Government Operations
Subcommittee on Information, Justice, Transportation and Agriculture, is a Washington
privacy and information policy consultant. His e-mail address is rgellman@cais.com.

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