Relative Invulnerability of Many Privately Controlled Databases

When the database maker is the sole source of the data in question, and substitute databases cannot readily be compiled from public domain sources, digital technology greatly strengthens a supplier's market power. By restricting access to identifiable, on-line subscribers, for example, and by "placing conditions on access and [using technology] to monitor . . . customer usage," the publisher can largely restore the power of the two-party contractual deal that the advent of the printing press had appeared to destroy.48 In effect, publishers in this position may not need copyright law at all, even if they qualified for protection. They may prefer to reject the state-imposed cultural bargain in order to override both its fair-use provisions and its specific exemptions favoring the public interest in teaching and research.49

Moreover, electronic publishers may have virtually no transaction cost problems to overcome because digital technology now enables them to track and charge for every instance of electronic access, even for browsing and scientific uses that were previously exempt. 50 The resulting market power then enables the publisher to impose monopoly prices and arbitrary terms on users-including libraries, educational institutions, and research centers-and to disregard the social consequences that ensue from the inability of such public organizations to foot the bills.51

How Will the Public Interest Be Served in the Information Age?

While many types of scientific data, like other forms of information, possess economic value under the appropriate circumstances, the sponsors of new proprietary rights explicitly contemplate a level of systematic commercialization of both large and small units of data that is unprecedented. How these impending changes in the legal infrastructure will impinge on the research and educational communities has not been clearly worked out even by the European authorities responsible for the European Union's recently adopted Directive on the Legal Protection of Databases. 52 A bill to enact a U.S. model of the European law, which was recently introduced, is even more cryptic in this regard,53 while the WIPO Draft Database Treaty tried to finesse the issue.54 One can predict, nevertheless, that these legislative initiatives will greatly affect the scientific and educational communities if, as Chapters 3 and 4 of this report have emphasized, they lead to a more market-driven environment with fewer government subsidies than before.

Whether contractual attempts to reduce users' access to scientific and cultural products that was promoted by copyright laws in the past will survive legal challenges on such grounds as federal preemption of state law, or doctrines of misuse of copyrights (allied to antitrust law), remains controversial.55 Another question is whether the economic and cultural bargain embodied in copyright law remains appropriate for the digital environment (see Box 5.3), given that trade-driven economic policies have otherwise weakened the consensus on which that



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