. "5 The Trend Toward Strengthened Intellectual Property Rights: A Potential Threat to Public-Good Uses of Scientific Data." Bits of Power: Issues in Global Access to Scientific Data. Washington, DC: The National Academies Press, 1997.
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service help-line"). But see Jane C. Ginsburg (1994), "Surveying the Borders of Copyright," J. Copyright Soc'y, 41:322:325-26 (arguing for legal restraints on such contractual conditions).
See, e.g., Goldstein, Celestial Jukebox, note 21, at p. 230 ("Exemptions and compulsory licenses for research and educational uses recognize the transcendent claim these uses have on a copyright system whose founding premise is that a culture can be built only if toilers in the vineyard are free to draw on the works of their predecessors"); Marci A. Hamilton (1996), "The TRIPS Agreement: Imperialistic, Outdated and Overprotective," Vand. J. Transnat'l L., 27:613, 623-33 (advocating construction of "free-use zone ... in the online era"); Samuelson, Technological Protection, note 37. For the view that developing countries should formulate their own doctrines of misuse to govern information providers' contracts, see J.H. Reichman (1997), "From Free Riders to Fair Followers: Global Competition Under the TRIPS Agreement," NYU J. Int'l L. Pol. (forthcoming).
See, e.g., Hamilton, note 59, at pp. 628-29.
See, e.g., Goldstein, Celestial Jukebox, note 21, at p. 230 (stressing need for exemptions and compulsory licenses favoring "research and educational uses" as transcendent claim rooted in cumulative progress of knowledge).
As mentioned above, the copyright laws of most developed countries exclude functionally determined databases and do not protect disparate data even when a given compilation as a whole happens to satisfy the eligibility requirements of those laws. This principle was incorporated into Article 10 of the TRIPS Agreement of 1994, which requires copyright protection when "the selection or arrangement of... contents constitute intellectual creations," but stipulates that such protection "shall not extend to the data or material itself."
See Paris Convention for the Protection of Industrial Property, March 20, 1883, as last revised at Stockholm, July 14, 1967, 21 U.S.T. 1583, T.I.A.S. No. 6923, 828 U.N.T.S. 305 (hereinafter Paris Convention); Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, as last revised at Paris, July 24, 1971, S. Treaty doc. 99-27, 99 Cong. 2d Sess. (1986), 828 U.N.T.S. 221 (hereinafter Berne Convention). For the official line of demarcation between "writings" and "products" that underlies these Conventions, and its gradual disintegration under pressure from a proliferating set of hybrid (i.e., sui generis) regimes that deviate from the patent and copyright models, see, e.g., Reichman, "Collapse of the Patent-Copyright Dichotomy," note 8, at pp. 480-512; see also Reichman, "Legal Hybrids," note 27, at pp. 24482519.
While the Commission claims that a key motive is the need to harmonize European Union law, critics debunk this claim because Article 10 of the TRIPS Agreement partly performed this function, and also because the E.C.'s database regime, as finally adopted, actually discourages harmonization on the crucial issue of fair use. See, e.g., Charles R. McManis (1996) "Taking TRIPS on the Information Superhighway: International Intellectual Property Protection and Emerging Computer Technology," Villanova L. Rev., pp. 207-288. The predominant objective, among those stated, is to increase the share of European database producers (including governments) in the world market. See, e.g., E.C. Directive on Databases, note 52, Recital 11.
See, e.g., Commission of the European Communities (1991), 1991 Report on the Impact Program: Main Events and Developments in the Electronic Information Services Market, COM (93) 156 final; Commission of the European Communities (1990), Working Program of the Commission in the Field of Copyright and Neighboring Rights, COM (90) 584 final; Rosier, note 28, at pp. 105, 107, 110-13. The IMPACT program specifically addressed the goal of improving the position of the European Union's member countries in the emerging global market for information goods. Among the strategies it endorsed were proposals to strengthen intellectual property rights, to protect new technologies, and to stimulate both international trade and European economic development.
See, e.g., Rosier, note 28, at pp. 109-10, 133-39. The Commission stressed the vulnerability of database publishers to market failure, but devoted little or no published attention to the