Congress had not already adopted similar legislation in the interim. 170 The haste with which both the U.S. and the European Union authorities have moved to implement these measures at the international level 171 thus raises still further questions about the extent to which the public interest has been compromised.
The case for moving so far and so fast rests largely on the supposed difficulties of enforcing territorially grounded intellectual property rights in cyberspace172 and on the fear of "detaching information from the physical plane, where property law of all sorts has always found definition."173 From a legal perspective, these developments raise daunting problems of conflicts of law, a field that has never found it easy to accommodate intangible property.174 Yet, it will not do to exaggerate these difficulties while ignoring the harmonizing effects of the TRIPS Agreement, which requires all countries that belong to the World Trade Organization to adopt both the universal minimum standards of the Berne Convention (whether or not they adhere to that convention) and the additional standards concerning computer programs, compilations, and related subject matter set out in the TRIPS Agreement itself.175 Regardless of whose law applies, in other words, digitally transmitted information goods will eventually become subject to the same international minimum standards of protection in all developed countries and in most developing countries as matters stand.176
To be sure, these standards harbor "gray areas" that are open to different interpretations, notably with respect to the scope of copyright protection afforded borderline works, such as computer programs and those databases that otherwise meet the domestic criteria of
eligibility.177 But the developed countries have only just begun to grapple with these issues, and there is no basis for an empirically grounded consensus even with regard to computer programs or industrial designs,178 let alone databases and other electronic information tools. As previously demonstrated, moreover, a solid body of scholarly opinion holds that "a combination of technological restrictions (such as encryption), contractual arrangements and criminal sanctions (for unauthorized decryption)" constitutes overprotection that raises a far greater risk than the risk posed by underprotection.179 Taking the IITF White Paper's controversial proposals to a premature diplomatic conference without allowing time for adversely affected users, especially the scientific and educational communities, to participate in the discussions thus lacked justification in terms of sound public policy.
At the time of this writing, neither the scientific nor the educational community has played any part in the relevant deliberations concerning the legal protection of databases, and they have not been consulted on any official basis. If matters proceed without adequate input from researchers and educators, Con