A QUESTION OF BALANCE

Private Rights and the Public Interest in Scientific and Technical Databases

Committee for a Study on Promoting Access to Scientific and Technical Data for the Public Interest

Commission on Physical Sciences, Mathematics, and Applications

National Research Council

NATIONAL ACADEMY PRESS
Washington, D.C.



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A Question of Balance: Private Rights and the Public Interest in Scientific and Technical Databases A QUESTION OF BALANCE Private Rights and the Public Interest in Scientific and Technical Databases Committee for a Study on Promoting Access to Scientific and Technical Data for the Public Interest Commission on Physical Sciences, Mathematics, and Applications National Research Council NATIONAL ACADEMY PRESS Washington, D.C.

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A Question of Balance: Private Rights and the Public Interest in Scientific and Technical Databases NOTICE: The project that is the subject of this report was approved by the Governing Board of the National Research Council, whose members are drawn from the councils of the National Academy of Sciences, the National Academy of Engineering, and the Institute of Medicine. The members of the committee responsible for the report were chosen for their special competences and with regard for appropriate balance. Support for this project was provided by the National Science Foundation (under grant no. OCE-9729508), the National Institutes of Health (under purchase order no. 467-MZ-801699), the National Institute of Standards and Technology (under contract no. 43NANB909028), the National Aeronautics and Space Administration, the National Oceanic and Atmospheric Administration, and the United States Geological Survey (through the aforementioned National Science Foundation grant no. OCE-9729508), and the Department of Energy (under contract no. DE-FG02-96ER30277). International Standard Book Number 0-309-06825-8 Library of Congress Catalog Card Number 99-68421 Additional copies of this report are available from National Academy Press, 2101 Constitution Avenue, N.W., Lockbox 285, Washington, D.C. 20055; (800) 624-6242 or (202) 334-3313 (in the Washington metropolitan area); Internet <http://www.nap.edu>. Copyright 1999 by the National Academy of Sciences. All rights reserved. Printed in the United States of America

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A Question of Balance: Private Rights and the Public Interest in Scientific and Technical Databases THE NATIONAL ACADEMIES National Academy of Sciences National Academy of Engineering Institute of Medicine National Research Council The National Academy of Sciences is a private, nonprofit, self-perpetuating society of distinguished scholars engaged in scientific and engineering research, dedicated to the furtherance of science and technology and to their use for the general welfare. Upon the authority of the charter granted to it by the Congress in 1863, the Academy has a mandate that requires it to advise the federal government on scientific and technical matters. Dr. Bruce M. Alberts is president of the National Academy of Sciences. The National Academy of Engineering was established in 1964, under the charter of the National Academy of Sciences, as a parallel organization of outstanding engineers. It is autonomous in its administration and in the selection of its members, sharing with the National Academy of Sciences the responsibility for advising the federal government. The National Academy of Engineering also sponsors engineering programs aimed at meeting national needs, encourages education and research, and recognizes the superior achievements of engineers. Dr. William A. Wulf is president of the National Academy of Engineering. The Institute of Medicine was established in 1970 by the National Academy of Sciences to secure the services of eminent members of appropriate professions in the examination of policy matters pertaining to the health of the public. The Institute acts under the responsibility given to the National Academy of Sciences by its congressional charter to be an adviser to the federal government and, upon its own initiative, to identify issues of medical care, research, and education. Dr. Kenneth I. Shine is president of the Institute of Medicine. The National Research Council was organized by the National Academy of Sciences in 1916 to associate the broad community of science and technology with the Academy's purposes of furthering knowledge and advising the federal government. Functioning in accordance with general policies determined by the Academy, the Council has become the principal operating agency of both the National Academy of Sciences and the National Academy of Engineering in providing services to the government, the public, and the scientific and engineering communities. The Council is administered jointly by both Academies and the Institute of Medicine. Dr. Bruce M. Alberts and Dr. William A. Wulf are chairman and vice chairman, respectively, of the National Research Council.

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A Question of Balance: Private Rights and the Public Interest in Scientific and Technical Databases COMMITTEE FOR A STUDY ON PROMOTING ACCESS TO SCIENTIFIC AND TECHNICAL DATA FOR THE PUBLIC INTEREST Robert J. Serafin, National Center for Atmospheric Research, Chair I. Trotter Hardy, College of William and Mary, School of Law Maureen C. Kelly, BIOSIS Peter R. Leavitt, Consultant Lee E. Limbird, Vanderbilt University Medical Center Philip Loftus, Glaxo Wellcome Harlan J. Onsrud, University of Maine Harvey S. Perlman, University of Nebraska, College of Law Roberta P. Saxon, Skjerven, Morrill, MacPherson, Franklin & Friel, LLP Suzanne Scotchmer, University of California at Berkeley Mark Stefik, Xerox Palo Alto Research Center Martha E. Williams, University of Illinois at Urbana-Champaign National Research Council Staff Paul F. Uhlir, Study Director Julie M. Esanu, Program/Research Associate Pamela Gamble, Administrative Assistant Barbara Wright, Administrative Assistant

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A Question of Balance: Private Rights and the Public Interest in Scientific and Technical Databases COMMISSION ON PHYSICAL SCIENCES, MATHEMATICS, AND APPLICATIONS Peter M. Banks, Veridian ERIM International, Inc., Co-Chair W. Carl Lineberger, University of Colorado, Co-Chair William F. Ballhaus, Jr., Lockheed Martin Corporation Shirley Chiang, University of California at Davis Marshall H. Cohen, California Institute of Technology Ronald G. Douglas, Texas A&M University Samuel H. Fuller, Analog Devices, Inc. Jerry P. Gollub, Haverford College Michael F. Goodchild, University of California at Santa Barbara Martha P. Haynes, Cornell University Wesley T. Huntress, Jr., Carnegie Institution Carol M. Jantzen, Savannah River Technology Center Paul G. Kaminski, Technovation, Inc. Kenneth H. Keller, University of Minnesota John R. Kreick, Sanders, a Lockheed Martin Company (retired) Marsha I. Lester, University of Pennsylvania Dusa M. McDuff, State University of New York at Stony Brook Janet Norwood, U.S. Commissioner of Labor Statistics (retired) M. Elisabeth Paté-Cornell, Stanford University Nicholas P. Samios, Brookhaven National Laboratory Robert J. Spinrad, Xerox PARC (retired) Norman Metzget, Executive Director (through July 1999) Myron F. Uman, Acting Executive Director (as of August 1999)

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A Question of Balance: Private Rights and the Public Interest in Scientific and Technical Databases Preface In response to a request from several federal science agencies, the Committee for a Study on Promoting Access to Scientific and Technical Data for the Public Interest (see Appendix A) undertook a study to identify and evaluate the various existing and proposed policy approaches (including related legal, economic, and technical considerations) for protecting the proprietary rights of private-sector database rights holders while promoting and enhancing access to scientific and technical (S&T) data for public-interest uses. Specifically, the sponsors asked the study committee to address the following issues: Describe the salient characteristics and importance of scientific and technical databases in research, both in general categories and using specific examples. Describe the practices of the production, dissemination, and use of S&T data in the federal, nonprofit, and commercial contexts. Identify the major incentives and disincentives in the production, dissemination, and use of S&T data in the federal, not-for-profit, and commercial contexts. Review the key elements of existing and proposed intellectual property rights regimes for noncopyrightable databases and other "collections of information," including technical protection measures, with specific emphasis on S&T databases. Also review the federal government policies regarding scientific data production, protection, dissemination, and use, particularly for data produced or disseminated by nongovernment entities under an agreement with government, including with government funding. Consider the pros and cons of legal, policy, and technical options identi-

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A Question of Balance: Private Rights and the Public Interest in Scientific and Technical Databases fied in response to item 4 above, with particular attention to balancing the interests of S&T database providers and disseminators in protecting their investments with the interests of promoting access to and use of S&T data for research and other public-interest uses. Identify issues that require further analysis and resolution, and how to address them. Provide conclusions and recommendations where possible, or otherwise provide an assessment of options. In discussing the charge and the scope of the project with the committee, the sponsors asked the committee to focus in particular on the legislative proposals on database protection then pending in Congress as examples of the kinds of statutory options that might be adopted. Both the sponsors and the committee were well aware of the fact that those pending proposals would change further and therefore presented "moving targets" for the study. It is for this reason that the committee's recommendations regarding any potential legislation in this area are offered as guiding principles rather than as specific language for a specific bill. The focus of the study was further constrained to domestic, rather than international, issues. The committee was cognizant of the fact that any new U.S. legislation would ultimately have substantial significance internationally, both in the economic and legal domains and in the S&T research community, but it limited its investigation and analysis of foreign laws and international legal issues, concentrating only on their direct influence on the U.S. domestic legal and policy situation. In addition, although the subject matter included all S&T databases, the committee was able to choose only representative examples for discussion and analysis in the report. For instance, the committee did not include specific examples from the social sciences or the space sciences, among other disciplines. Nevertheless, the committee believes that the relatively broad spectrum of S&T databases that it did use captured the most significant issues in the context of database protection and public-interest uses. In responding to its charge, the committee made significant efforts to obtain broad input from representatives of the main identified interest groups, primarily through a workshop that was held on January 14-15, 1999, at the main Department of Commerce building in Washington, D.C. (Appendix B gives the agenda and lists the participants). The workshop Proceedings—taped, transcribed, edited, and published only in electronic form on the National Academies' Web site at <www.nap.edu>—were a major source of information for this report (Appendix C lists the contents of the published Proceedings).1 The committee also met 1   The views expressed in the committee's workshop Proceedings are solely those of the individual authors and workshop participants. The separate Proceedings report does not provide conclusions and recommendations.

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A Question of Balance: Private Rights and the Public Interest in Scientific and Technical Databases on two other occasions to gather information and to work on this report. In addition, the underlying technical factors and developments associated with digital networked information, and their impact on intellectual property rights protection, are examined in detail in a concurrent study, The Digital Dilemma: Intellectual Property in the Information Age (National Academy Press, Washington, D.C., 2000, in press), by the National Research Council's Computer Science and Telecommunications Board. The report that follows reflects the deliberative consensus of the study committee. It is our hope that the committee's conclusions and recommendations will help the sponsors of the study, the legislators examining database protection proposals, and the broader S&T community to understand better the issues in striking a proper balance between protecting rights in and promoting public-interest uses of scientific and technical databases. Robert J. Serafin, Chair Paul F. Uhlir, Study Director

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A Question of Balance: Private Rights and the Public Interest in Scientific and Technical Databases Acknowledgments The study committee wishes to express its sincere thanks to the many individuals who played significant roles in the completion of this study. The committee sponsored the Workshop on Promoting Access to Scientific and Technical Data for the Public Interest: An Assessment of Policy Options on January 14-15, 1999, at the Department of Commerce in Washington, D.C., and it extends its thanks to the following individuals who made presentations during the January 14, 1999, plenary session: Q. Todd Dickinson, acting commissioner of Patents and Trademarks, Department of Commerce, gave the keynote address; Barbara Ryan of the U.S. Geological Survey and Barry Glick, formerly with GeoSystems Global Corporation, participated in the geographic data panel; G. Christian Overton of the University of Pennsylvania's Center for Bioinformatics, James Ostell of the National Library of Medicine's National Center for Biotechnology Information, and Myra Williams of the Molecular Applications Group participated in the genomic data panel; Richard Kayser of the National Institute of Standards and Technology, James Lohr of the American Chemical Society' s Chemical Abstracts Service, and Leslie Singer of the Institute for Scientific Information, Inc. participated in the panel that discussed chemical and chemical engineering data; Kenneth Hadeen of the National Oceanic and Atmospheric Administration's National Climatic Data Center (retired), David Fulker of the University Corporation for Atmospheric Research's Unidata Program, and Robert Brammer of TASC participated in the meteorological data panel; Richard Gilbert of the University of California at Berkeley discussed economic factors in the production, dissemination, and use of scientific and technical (S&T) databases in the public and private-sectors; Stephen Maurer, attorney, submitted a commissioned paper for the study

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A Question of Balance: Private Rights and the Public Interest in Scientific and Technical Databases (reproduced as Appendix C of the online workshop Proceedings); Teresa Lunt of the Xerox Palo Alto Research Center provided an overview of the current situation and future prospects with respect to technologies for protecting and also for misappropriating digital intellectual property rights; Marybeth Peters, Register of Copyrights in the Library of Congress, provided a summary overview of the existing and proposed intellectual property rights regimes for databases; and Justin Hughes, of the Department of Commerce's Patent and Trademark Office, summarized the relevant federal government information law and data policies. The aforementioned data panelists also participated in the January 14, 1999, discussion sessions on not-for-profit-sector data, government-sector data, and commercial-sector data. The committee would also like to thank those who participated as panelists in the January 15, 1999, discussion sessions on the potential impacts of legislation and assessments of policy options during the workshop. Jon Baumgarten of Proskauer Rose, LLP, Peter Jaszi of the American University School of Law, James Neal of the John Hopkins University Library, and Ferris Webster of the University of Delaware joined Kenneth Hadeen, David Fulker, and Robert Brammer in discussing what would happen should Congress decide to enact a strong property rights model for protecting databases. Dennis Benson of the National Center for Biotechnology Information, Jonathan Band of Morrison & Foerster, LLP, and Thomas Rindfleisch of Stanford University's Lane Medical Library discussed, with Chris Overton and Myra Williams, the possible scenarios should Congress enact an unfair competition model for protecting databases. Prue Adler of the Association of Research Libraries, Eric Massant of Reed Elsevier, Inc., Tim Foresman of the University of Maryland, and Kenneth Frazier of the University of Wisconsin Libraries joined Barry Glick in a discussion assessing legal and policy options in promoting access to and use of government S&T data for the public interest. Finally, Jerome Reichman of the Vanderbilt University School of Law and R. Stephen Berry of the University of Chicago discussed possible legal and policy options associated with promoting access to and use of not-for-profit-sector S&T data for the public interest with Richard Kayser, James Lohr, and Leslie Singer. The committee is also very appreciative of the contributions of more than 100 individuals who attended the workshop. In addition, it extends its gratitude to Jean Schiro-Zavela of the National Oceanic and Atmospheric Administration and to Justin Hughes of the Patent and Trademark Office for helping to make arrangements for the workshop. The committee would also like to express its gratitude .to the following ex officio members, who provided liaison with other relevant activities: Goetz Oertel of the Association of Universities for Research in Astronomy and chair of the U.S. National Committee for CODATA; Shelton Alexander, of Pennsylvania State University, who is a member of the National Research Council's Computer Science and Telecommunications Board's committee studying intellectual property rights in the networked environment; and Francis Bretherton of the Univer-

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A Question of Balance: Private Rights and the Public Interest in Scientific and Technical Databases sity of Wisconsin, chair of the National Research Council's Committee on Geophysical and Environmental Data. This report has been reviewed in draft form by individuals chosen for their diverse perspectives and technical and legal expertise, in accordance with procedures approved by the National Research Council's Report Review Committee. The purpose of this independent review is to provide candid and critical comments that will assist the institution in making the published report as sound as possible and to ensure that the report meets institutional standards for objectivity, evidence, and responsiveness to the study charge. The review comments and draft manuscript remain confidential to protect the integrity of the deliberative process. The study committee would like to thank the following individuals for their participation in the review of this report: George Annas of Boston University, Lois Blaine of the American Type Culture Collection, Kenneth Dam of the University of Chicago School of Law, John Estes of the University of California at Santa Barbara, Richard Hallgren of the American Meteorological Society, Michael Keller of Stanford University Library and Highwire Press Inc., Gary King of Harvard University, Charles McClure of Syracuse University, Roger Noll of Stanford University, Pamela Samuelson of the University of California at Berkeley, William Sprigg of the University of Arizona, Hal Varian of the University of California at Berkeley, and Ronald Wigington of the American Chemical Society (retired). In addition, the following individuals reviewed the workshop Proceedings : Bonnie Carroll of Information International Associates, Inc., David Lide, Jr., publishing consultant, and Goetz Oertel of the Association of Universities for Research in Astronomy. Finally, the committee would like to recognize the contributions of the National Research Council staff without whom this report could not have been completed: Paul Uhlir, director of International Scientific and Technical Information Programs of the Office of International Affairs, who served as study director and organized the workshop and other study committee meetings; Julie Esanu, who provided research and program assistance to the committee, as well as editorial work on the workshop Proceedings; Barbara Wright and Pamela Gamble for the staff support to the committee; and Susan Maurizi and Janet Overton, who edited the final committee report and the Proceedings.

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A Question of Balance: Private Rights and the Public Interest in Scientific and Technical Databases Contents     SUMMARY   1 1   IMPORTANCE AND USE OF SCIENTIFIC AND TECHNICAL DATABASES   14     Scientific and Technical Data and the Creation of New Knowledge,   17     Scientific and Technical Databases as a Resource- The Current Context,   18     Collection of Original Data and Production of New Databases,   19     Dissemination of Scientific and Technical Data and the Issue of Access,   30     Use of Scientific and Technical Databases,   32     The Challenge of Effectively Balancing Private Rights and the Public Interest in Scientific and Technical Databases,   38 2   INCENTIVES AND DISINCENTIVES AFFECTING THE AVAILABILITY AND USE OF SCIENTIFIC AND TECHNICAL DATABASES   40     Divergent Objectives of Organizations That Produce and Distribute Scientific and Technical Databases,   40     Scientific and Technical Database Costs, Pricing, and Access,   43     Production and Distribution Costs,   44     Pricing and Access,   45     Stronger Statutory Protection and the Incentives for Investment,   46

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A Question of Balance: Private Rights and the Public Interest in Scientific and Technical Databases     Mounting Pressures on Government Producers and Distributors of Scientific and Technical Databases for Cost Recovery,   47 3   ACCESS TO AND PROTECTIONS FOR DATABASES: EXISTING POLICIES AND APPROACHES   51     Access to U.S. Government-Funded Scientific and Technical Data,   52     Existing Protections for Databases in the United States,   58     Legal Protections,   59     Technological Protections,   64     Market-Based Database Protection Through Updating and Customizing,   68     Tipping the Balance: The European Union's Database Directive,   69 4   ASSESSMENT AND RECOMMENDATIONS   73     Assessment of Legislative Options, with Recommendations on Guiding Principles,   74     The Standard of Harm,   78     Scope of Protection,   83     Term of Protection,   84     Exemptions for Not-for-Profit Research and Education,   87     Periodic Assessments of Effects Under Any New Statute,   93     Exemptions for Government Databases,   96     Assessment of Policy Options, with Recommendations for Government Action,   100     Promoting Availability of Government Scientific and Technical Data,   100     Maintaining Nonexclusive Rights by Not-for-Profits in Government-funded Databases,   102     Organizing Discussions of Licensing Terms for Not-for-Profit Uses of Commercial Scientific and Technical Databases,   105     Improving the Understanding of Complex Economic Aspects of Scientific and Technical Database Activities,   107     Promoting International Access to Scientific and Technical Data,   108     Recommended Approach for the Not-for-Profit Scientific and Technical Community,   109     APPENDIXES         A Biographical Sketches of Committee Members,   113     B Workshop Agenda and Participants,   118     C Workshop Proceedings—Listing of Contents,   128     D European Union Directive on the Legal Protection of Databases,   130

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A Question of Balance: Private Rights and the Public Interest in Scientific and Technical Databases A QUESTION OF BALANCE

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