tion goods. Despite a general consensus on the need for sustained levels of investment in research and development, the proposed database laws could change the status quo—without anyone's wanting it to happen—by elevating the price of the one raw material to which U.S. researchers have always had ready access. If less available scientific information were to translate to fewer applications of economic importance, the end result would be a loss of U.S. technological competitiveness in an integrated world market.183

Preserving the Public-Good Aspects of Science—What Is Needed?

The negative prospects outlined above do not mean that the interests of research and education are best served by the absence of legal protection for the contents of databases. As Chapter 4 suggests, a socially balanced, procompetitive database regime might indirectly help science to contain costs by bringing market forces to bear on some of the pressure points. It would provide a greater stimulus to third-party investors who might compete with sole-source data generators or distributors (when the market segment in question can feasibly support multiple providers), or who might adapt sole-source data sets to applications of particular interest to science. While this stimulus might not change the overall market structure or significantly reduce the formation of natural monopolies, in the short term at least it could help to trigger countervailing tendencies and thus lead to lower prices and fewer restrictions on access, particularly if novel, value-added products become of greater importance to science over time.

Conversely, if a socially imbalanced, overly protective database law converts existing impediments into insuperable legal barriers to entry, the adverse effects on science—absent offsetting legal safeguards—would soon make themselves felt (see Box 5.5). In this context, the scientific and educational communities—like value-adding users and second comers in general184—would arguably fare better either under a simple unfair competition law that prohibits wholesale copying or under a sui generis regime built on more refined liability principles than under any regime based on exclusive property rights.

A liability model creates no legal barriers to entry in its own right, nor need it significantly strengthen the sole-source data provider's market power. A liability regime also can eliminate the "refusal-to-deal" problem, by addressing the serious concerns of those who fear the power of sole-source data providers to restrict access to data on a variety of grounds. When an automatic license is built into a modern liability regime, it tends inherently to solve the problem of abuse without recourse to antitrust law. For these reasons, the European Commission's initial preference for a liability regime, rather than an exclusive property right,185 merits careful consideration by the U.S. scientific community as a possible response to the overall challenge posed by the drive for sui generis database laws.



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