community in response to fear about the DMCA. That is a situation where, as scientists or as researchers, you need to keep on your hat of neutrality and not engage in the rhetoric that the DMCA is bad.
Let me talk a little bit about database protection, which is a serious issue. Paul Uhlir, Jerry Reichman, Brian Kahin, and I, along with many others in this room, have worked on it for years. I was surprised to hear Professor Reichman say that university technology managers are imposing conditions on databases built with federal funding. If that is true, we have a problem. However, the problem is not IP law. We need to galvanize the administration so that the National Science Foundation, the National Institutes of Health, the Department of Energy, and all those federal agencies that fund these databases go after their funding and say thou shalt not impose these kinds of conditions on the data that I have paid for.
Let me talk about the European Union Database Directive. The good news is that it is not doing anything literally. Stephen Maurer, Bernt Hugenholtz, and Harlan Onsrud have done some work looking at whether there has been any growth in the commercial database industry in Europe following the implementation of the Database Directive. It is not working to date.
Now, keep my words carefully in mind. I said to date it is not working. When you ask the European Commission if the directive is serving as an incentive for the generation of commercial databases, they say “yes.” Their evidence appears to be that they go around Barnes and Noble occasionally and look at database products or they count the number of litigations that they can find. The litigation all involves databases that existed before the directive came out. As such, it is not doing much on incentive structure. Scariest of all, the European Commission commissioned a survey on the effects of the Database Directive. They invited me to fill it out. Two important questions are not on the survey; have you introduced any new database products since the promulgation of the directive? Was the directive instrumental in influencing your decision to introduce any new database products?
As far as we know, the Database Directive is not doing what they thought it would do. Having said that, keep in mind your neutral position. We should not expect it to have done anything yet. It has been promulgated only for a couple of years. We know that the business community is not the most attuned to how IP law works. All you have to do is read Rembrandts in the Attic to understand how clueless they generally are about patent and copyright law, which has been around for centuries.
If the European Database Directive is going to have an incentive effect, it will not do so in just a couple years. So, although I am pleased that there are no results yet, I do not want to say that the directive is a failure. All we can say now is that the directive is not working. Now, the other piece of good news that I want to mention about the directive is that none of the cases has involved anyone in the scientific community. All of the cases appear to be corporate entities in the European Union slugging it out with each other. Now, that is important. I am not saying this is not a great concern to science, but it is interesting to look at, and it also makes it more viable for science to request an exception because clearly no one is concerned about what we have been doing.
In the United States, as Professor Reichman said, there has been equipoise between political forces for several years, and we are not going to get any international movement until the United States is somewhere. Both Professor Reichman and I probably agree that we need to have some modest database protection law in the United States to serve as a counterpoise to the European Union. It is just that we do not have a convincing case, empirically or in theory, for anything nearly as strong as what they have done. That is really what the scientific community ultimately should worry about.
I have preached that you can go into battle with this position—there should not be big changes in the law, unless there is a great empirical case or a great theoretical case, but I want to add that it is fine to go into battle on amending the law with your intuitions. If you are thinking about introducing something into the system that might kill off a lot of things, then you ought to hold back and take a principled position and insist that the other people who want the change, whether the change is more IP or the change is less IP, ought to prove it.