3
Access to and Protections for Databases' Existing Policies and Approaches

The escalating drive to enhance legal protection for databases arises primarily from three developments. The first is the evolution of a digital world in which information is an increasingly important commercial commodity whose unauthorized appropriation can be accomplished cheaply and accurately, and the information broadly disseminated. The second is the 1991 U.S. Supreme Court decision in Feist Publications, Inc. v. Rural Telephone Service Co.,1 limiting copyright protection to creative works and denying protection to a "sweat-of-the-brow" database whose composition, even though it may require the investment of effort and resources, is not sufficiently creative in selection and arrangement to qualify for copyright protection. The third is the European Parliament's adoption in 1996 of the Directive on the Legal Protection of Databases (hereinafter, the E.U. Database Directive; the E.U. Directive)2 that requires countries of the European Union to adopt strong property protection for databases (see Appendix D for the full text of the E.U. Directive). The E.U. Directive also stipulates that sui generis protection for databases in Europe will be extended to foreign database fights holders only if their home countries have adopted substantially similar

1  

499 U.S. 340 (1991). It is important to note, however, that Feist did not "overturn" the "sweat-of-the-brow" doctrine under copyright, which Congress had actually done already under the Copyright Act of 1976. Moreover, the sweat-of-the-brow doctrine under state law was never a prevailing legal approach.

2  

Directive 96/9/EC of the European Parliament and of the Council of I 1 March 1996 on the Legal Protection of Databases, 1996 O.J. (L77) 20. The E.U. Database Directive is reprinted as Appendix D of this report.



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A Question of Balance: Private Rights and the Public Interest in Scientific and Technical Databases 3 Access to and Protections for Databases' Existing Policies and Approaches The escalating drive to enhance legal protection for databases arises primarily from three developments. The first is the evolution of a digital world in which information is an increasingly important commercial commodity whose unauthorized appropriation can be accomplished cheaply and accurately, and the information broadly disseminated. The second is the 1991 U.S. Supreme Court decision in Feist Publications, Inc. v. Rural Telephone Service Co.,1 limiting copyright protection to creative works and denying protection to a "sweat-of-the-brow" database whose composition, even though it may require the investment of effort and resources, is not sufficiently creative in selection and arrangement to qualify for copyright protection. The third is the European Parliament's adoption in 1996 of the Directive on the Legal Protection of Databases (hereinafter, the E.U. Database Directive; the E.U. Directive)2 that requires countries of the European Union to adopt strong property protection for databases (see Appendix D for the full text of the E.U. Directive). The E.U. Directive also stipulates that sui generis protection for databases in Europe will be extended to foreign database fights holders only if their home countries have adopted substantially similar 1   499 U.S. 340 (1991). It is important to note, however, that Feist did not "overturn" the "sweat-of-the-brow" doctrine under copyright, which Congress had actually done already under the Copyright Act of 1976. Moreover, the sweat-of-the-brow doctrine under state law was never a prevailing legal approach. 2   Directive 96/9/EC of the European Parliament and of the Council of I 1 March 1996 on the Legal Protection of Databases, 1996 O.J. (L77) 20. The E.U. Database Directive is reprinted as Appendix D of this report.

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A Question of Balance: Private Rights and the Public Interest in Scientific and Technical Databases protection.3 These three developments have resulted in a perceived increased vulnerability of databases to misappropriation and to a new European legal regime that has been alleged to place U.S. database rights holders at a competitive disadvantage in Europe.4 It is the last factor that appears to concern private-sector scientific and technical (S&T) database producers and vendors the most, based on input received at the committee's January 1999 workshop. Nevertheless, it is important to note that all other laws protecting foreign rights holders in the European Union remain independently applicable to them under the national treatment clause of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement)5 and related conventions. This chapter briefly describes the law and policy governing U.S. government databases; the existing legal, technical, and market-based measures that are available to protect private-sector databases in the United States; and the new E.U. Database Directive. ACCESS TO U.S. GOVERNMENT-FUNDED SCIENTIFIC AND TECHNICAL DATA The U.S. government is the world's largest creator, user, and disseminator of data and information, including the federal records and S&T databases that are considered highly valuable national assets. A basic principle underlying most U.S. information law is that democracy thrives and the economic and social benefits of information are maximized in society by fostering wide diversity in the creation, dissemination, and use of information.6 By extension, to gain the greatest economic and social benefits from government information assets, such information should be made available to all in the most efficient, timely, and equitable ways possible. U.S. laws and policies generally implement this proposition. In direct contrast to those laws that encourage protection of the proprietary rights of private-sector entities, U.S. domestic information policy at the federal level may be summarized as one comprising "a strong freedom of infor 3   E.U. Database Directive (1996), note 2, Recital 56. 4   See testimony of Henry Horbaczewski, Reed Elsevier, Inc., on behalf of the Coalition Against Database Piracy in June 15, 1999, hearing on H.R. 1858, the Consumer and Investor Access to Information Act of 1999, before the House Commerce Subcommittee on Telecommunications, Trade, and Consumer Protection, U.S. House of Representatives, U.S. Congress, Washington, D.C. 5   See Final Act Embodying the Results for the Uruguay Round of Multilateral Trade Negotiations, done at Marrakesh, Morocco, April 15, 1994, reprinted in The Results of the Uruguay, Round of Multilateral Trade Negotiations: The Legal Texts 2-3 (GATT Secretariat ed., 1994); Marrakesh Agreement Establishing the World Trade Organization, Annex 1C: Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994. The TRIPS Agreement holds all member states of the World Trade Organization to a common set of intellectual property norms. 6   44 U.S.C., section 3506(d)(1)(A) (Supp. 1995).

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A Question of Balance: Private Rights and the Public Interest in Scientific and Technical Databases mation law, no government copyright, fees limited to recouping the cost of dissemination, and no restrictions on reuse."7 U.S. law expressly forbids federal departments and agencies from claiming copyright in their written works, thereby placing these information resources in the public domain. The 1976 Copyright Act states that "[c]opyright protection under this title is not available for any work of the United States Government."8 The reasons are several. One is the fundamental belief that government copyright of public records is the antithesis of open access whereby an informed citizenry can check official actions and possible abuses. However, other values also are at work. Taxpayers should not have to pay twice for the same information—once for the cost of generating the work, and a second time to obtain it. Also important to avoid is the danger that government could exercise copyright in a manner that would burden free speech (e.g., so as to prevent critics from obtaining particular information at any price). Finally, individuals ought to be able to derive benefit from public goods (such as public S&T data and information) and enjoy improved educational opportunities through increased access to data and information, opportunities that are inherently beneficial in their own right.9 Thus, the position of Congress has been to support the development of secondary markets for government information by individuals and private businesses, and to otherwise encourage the distribution of government information in the public interest. The U.S. Freedom of Information Act (FOIA)10 and the open records laws of the individual states11 together balance the right of citizens to be informed about government activities and the need to maintain the confidentiality of some government records. Both the national FOIA and state open records laws generally support a policy of broad disclosure by government. For instance, if a database held by a federal agency is determined to be an agency record, the record must be disclosed to any person requesting it unless the record falls within one of nine exceptions contained in the FOIA.12 Exceptions are construed nar 7   Peter N. Weiss and Peter Backlund (1997), "International Information Policy in Conflict: Open and Unrestricted Access versus Government Commercialization," in Borders in Cyberspace: Information Policy and the Global Information Infrastructure, Brian Kahin and Charles Nesson, eds., MIT Press, Cambridge, MA. 8   17 U.S.C., section 105. 9   U.S. Congress, Office of Technology Assessment (1986), Intellectual Property, Rights in an Age of Electronics and Information, U.S. Government Printing Office, Washington, D.C. 10   5 U.S.C., section 552. 11   R. Daugherty, G. Leslie, and L. Reis, eds. (1997), "Tapping Official's Secrets: A State Open Government Compendium," Reporters' Committee for Freedom of the Press, Arlington, VA, available online at <www.rcfp.org/tapping/index.cgi>. 12   The nine exceptions as set forth in 5 U.S.C., section 552 (b) are as follows: (b) This section does not apply to matters that are—(1) (A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Execu

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A Question of Balance: Private Rights and the Public Interest in Scientific and Technical Databases rowly by the courts so that disclosure is typically favored over non-disclosure. In responding to citizen requests for records, government agencies at most levels are authorized to recover the costs of responding to those requests. Federal departments and agencies also have affirmative obligations to actively disseminate their information as defined by the provisions of OMB Circular A-130.13 They are particularly encouraged to disseminate raw content on which value-added products can be based and to do so at cost of distribution and through diverse channels, with no imposition of restrictions on the use of the data. The core provisions of OMB Circular A-130 were incorporated into the Paperwork Reduction Act of 1995,14 which additionally encourages agencies to use information technology to provide public access, rather than relying on cumbersome FOIA processes. Given federal agencies' expanding use of World Wide Web servers to meet their internal objectives, as well as to better implement the government' s data-sharing policies, the additional cost of disseminating information to the public has become so negligible that many government databases are now made freely available to anyone with the ability to access them over the Internet.15     tive order; (2) related solely to the internal personnel rules and practices of an agency; (3) specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld; (4) trade secrets and commercial or financial information obtained from a person and privileged or confidential; (5) interagency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency; (6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; (7) records or information compiled for law enforcement purposes . . .; (8) contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or (9) geological and geophysical information and data, including maps, concerning wells. Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection. The amount of information deleted shall be indicated on the released portion of the record, unless including that indication would harm an interest protected by the exemption in this subsection under which the deletion is made. If technically feasible, the amount of the information deleted shall be indicated at the place in the record where such deletion is made. 13   Office of Management and Budget (1993), Circular A-130, "Management of Federal Information Resources," U.S. Government Printing Office, Washington, D.C. 14   Paperwork Reduction Act of 1995, P.L. No. 104-13, 109 Stat. 163 (May 22, 1995), 44 U.S.C. Chapter 35. 15   For example, federal legislation and court decisions generally may be accessed online at <http://thomas.loc.gov/>, while many federal geographic data sets may be accessed online at <http://fgdclearhs.er.usgs.gov/>. The databases being made available by federal agencies typically may be traced through their official Web sites indexed online at <http://lcweb.loc.gov/global/executive/fed.html>.

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A Question of Balance: Private Rights and the Public Interest in Scientific and Technical Databases Open access policies specifically targeted at public and publicly funded S&T data availability and exchange, on agency and interagency program levels as well as internationally, have been adopted in recent years especially in the area of environmental and earth science research. 16 These policies all restate in similar terms the federal policy of full and open availability of data pointed to in Chapter 1. The Federal Acquisition Regulation (FAR) applies generally to all federal agency contractual relationships with the private-sector. 17 In subpart 27.4, ''Rights in Data and Copyrights," the FAR delineates the respective rights and obligations of the government and the contractor regarding the use, duplication, and disclosure of data produced under contracts with the government.18 As a general proposition, the government acquires unlimited fights in most data first produced in the performance of a contract, while the contractor may receive limited fights in some data. Article 36(a) of OMB Circular A-110, "Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Not-for-profit Organizations,"19 states that the recipient of a grant or agreement subject to this circular "may copyright any work that is subject to copyright and was developed, or for which rights holdership was purchased, under an award. The Federal awarding agency(ies) reserve a royalty-free, nonexclusive and irrevocable right to reproduce, publish or otherwise use the work for Federal purposes, and to authorize others to do so." Article 24(h) states, "Unless Federal awarding agency regulations or the terms and conditions of the award provide otherwise, recipients shall have no obligation to the Federal Government with respect to program income earned from license fees and royalties for copyrighted material, patents, patent applications, trademarks, and inventions produced under an award." Similarly, the Grant Policy Manual of the National Science Foundation (NSF) specifies in Section 732.1 that the following principles govern the treatment of copyrightable material produced under NSF grants: 20 16   For a comprehensive collection of such policies in the environmental data area, see Interagency Data Management Working Group of the U.S. Global Change Research Program (1999), Data Access Policy Actions of Importance to Global Environmental Change Data Users, U.S. Global Change Research Program, Washington, D.C. See also, the Data Policies portion of the U.S. Global Change Research Program's Global Change Data and Information System Web site online at <www.gcdis.usgcrp.gov/policies>. 17   48 CFR, Chapter 1. 18   48 CFR, at subpart 27.4 on "Rights in Data and Copyrights." 19   Office of Management and Budget (1997), Circular A-110, "Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Not-for-profit Organizations," revised November 19, 1993; as further amended August 29, 1997. 20   National Science Foundation (1995), Grant Policy Manual, NSF 95-26, Arlington, VA, available online at <www.nsf.gov:80/bfa/cpo/gpm95/start.htm>.

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A Question of Balance: Private Rights and the Public Interest in Scientific and Technical Databases NSF normally will acquire only such rights in copyrightable material as are needed to achieve its purposes or to comply with the requirements of any applicable government-wide policy or international agreement. To preserve incentives for private dissemination and development, NSF normally will not restrict or take any part of income earned from copyrightable material except as necessary to comply with the requirements of any applicable government-wide policy or international agreement. In exceptional circumstances, NSF may restrict or eliminate an awardee's control of NSF-supported copyrightable material and of income earned from it, if NSF determines that this would best serve the purposes of a particular program or grant. Cooperative research and development agreements (CRADAs) provide yet another legal mechanism by which databases or services can be created to meet particular governmental needs.21 The CRADA legislation, however, creates an exception to the Freedom of Information Act. Databases created under a CRADA potentially may be withheld from citizen requests under FOIA.22 State and local governmental entities in the United States also create and maintain records and databases that have substantial value for various segments of the research and educational community. State governments historically have been a primary source of detailed information in the areas of health, welfare, 21   15 U S C., section 3710a: As used in this section—(1) the term "cooperative research and development agreement" means any agreement between one or more Federal laboratories and one or more non-Federal parties under which the Government, through its laboratories, provides personnel, services, facilities, equipment, intellectual property, or other resources with or without reimbursement (but not funds to non-Federal parties) and the non-Federal parties provide funds, personnel, services, facilities, equipment, intellectual property, or other resources toward the conduct of specified research or development efforts which are consistent with the missions of the laboratory, . . .. . See 15 U.S.C. 3710a(d)(1). 22   See DeLorme Publishing Company, Inc. v. National Oceanic and Atmospheric Administration, 917 F. Supp. 867 (DC Maine 1996) upholding 15 U.S.C. 3710a as a legislative exception to FOIA: 15 USC 3710a provides two types of protection from disclosure of privileged or confidential information resulting from cooperative research and development activities. First, (n)o trade secrets or commercial or financial information that is privileged or confidential . . . which is obtained in the conduct of research or as a result of activities under this chapter from a non-Federal party participating in a cooperative research and development agreement shall be disclosed. See 15 USC 3710a(c)(7)(A). Second, (t)he director, or in the case of a contractor-operated laboratory, the agency, for a period of up to 5 years after development of information that results from research and development activities conducted under this chapter and that would be a trade secret or commercial or financial information that is privileged or confidential if the information had been obtained from a non-Federal party participating in a cooperative research and development agreement, may provide appropriate protections against the dissemination of such information, including exemption from subchapter II of chapter 5 of Title 5.

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A Question of Balance: Private Rights and the Public Interest in Scientific and Technical Databases education, labor markets, transportation, the environment, and criminal justice.23 Because communities have a great interest in knowing about themselves and their activities, local governments often produce detailed databases on the characteristics and attributes of physical, social, and human resources in the community that are unavailable from other sources. The U.S. Copyright Act does not explicitly ban copyright claims in the works of state and local governments, as it does for the works of the U.S. government.24 As such, most state and local governments believe they have the option of asserting copyright in their public records if they choose to do so. Some legal scholars argue that although allowed by law, generally it is unwise economic and social policy for state and local governments to allow government commercialization of public information.25 Other legal scholars argue that claims of copyright by state and local governments in many of their works and databases are illegal.26 Under the patents and copyright clause of the U.S. Constitution, the argument is made that Congress lacks the ability to extend copyright beyond that which is necessary to provide "incentives" to authors to make their works available.27 When state or local government agencies collect information in response to a legislated obligation, it is the public need as defined by the legislative obligation that provides the incentive to gather information or to create a public record. If copyright failed to exist, the information would still be collected. This being the case, copyright provides no incentive for data collection and database production, and the works therefore may not be protected by copyright.28 Yet other legal scholars claim that government commercialization of public information raises significant First Amendment free speech issues.29 One argument is that contractual provisions that ban the reuse or further dissemination of public infor 23   Weiss and Backlund (1997), note 7, p. 304. 24   17 U.S.C., section 105. 25   In support of the general proposition for all levels of government, see L. Ray Patterson and Craig Joyce (1989), "Monopolizing the Law: The Scope of Copyright Protection for Law Reports and Statutory Compilations," UCLA Law Review, Vol. 36, p. 719; J.H. Reichman and Pamela Samuelson (1997), "Intellectual Property Rights in Data?" Vanderbilt Law Review , Vol. 50, p. 51; and J. Littman (1992), "After Feist," U. Dayton Law Review, Vol. 17, p. 607. For a state-level statement of policy in general accord see Minnesota Government Information Access Council, Digital Democracy: Citizens' Guide for Government Policy in the Information Age, available online at <http://www.admin.state.mn.us/ipo/giac/report/index.html>. 26   H. Perritt (1996), Law and the Information Superhighway, John Wiley & Sons, New York, p. 484. 27   United States Constitution, Article I, Section 8, clause 8. 28   See generally the discussion in Perritt (1996), note 26, pp. 482-487. 29   See Henry Perritt, Jr. (1996), Section 11.10 First Amendment Role, Law and the Information Superhighway, Wiley Law Publications, New York, pp. 489-491; Philip H. Miller (1991), "Life After Feist: Facts, the First Amendment, and Copyright Status of Automated Databases," Fordham L. Rev., Vol. 60, pp. 507, 509; and Michael J. Haungs (1990), "Copyright of Factual Compilations: Public Policy and the First Amendment," Colum. J. Law & Soc. Probs., Vol. 23, pp. 347, 364.

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A Question of Balance: Private Rights and the Public Interest in Scientific and Technical Databases mation or that establish varying fee structures depending on purpose of use might readily be used by government officials for ulterior motives of censorship or manipulation of public information for political purposes. Regardless of the legal and economic arguments, many local and state agencies have pursued the imposition of copyright in at least some public records and databases, both hard copy and digital.30 These local government authorities perceive the possibility of paying for the creation and maintenance of local government information systems other than through general tax revenues. Restricting access to public records is contrary to the plain letter language of most state open records laws in the United States, and therefore explicit legislation is typically required to allow the restrictions. Those who seek to impose new access restrictions on citizens bear the burden of overcoming the underlying policy arguments on which the existing laws are based, foremost of which are that open access keeps government accountable and that open access to government information, subject to appropriate limitations based on privacy, confidentiality, national security, and other considerations, has far greater long-term economic benefits for a community than does pursuing revenue-generation approaches. It is noteworthy that the United States has become a world leader in research and technology at a time when its domestic public information laws have been so divergent from those of most other nations. In general, the U.S. legal system allows greater access to and use of government information at the local, state, and national government levels than is allowed in other nations. U.S. law also grants individuals greater leeway to use the work products of others without permission than is often granted by the laws of other nations. The role of the U.S. legal system in supporting full and open access to scientific data for the academic and commercial-sectors and the role of U.S. federal funding in defraying the costs of collecting and providing access to scientific data are factors that should not be overlooked when exploring the competitive success of U.S. scientists and businesses. EXISTING PROTECTIONS FOR DATABASES IN THE UNITED STATES Currently available legal protections of databases in the United States include copyright, private contracts and licensing, trade secret law, and state unfair 30   Iver Petersen (1997), "Public Information, Business Rates: State Agencies Turn Data Base Records Into Cash Cows," New York Times, July 14, p. D1; For What It's Worth: A Guide to Valuing and Pricing Local Government Information (1996), Public Technology, Inc. Press, Washington, D.C. (Note: Public Technology, Inc. is a not-for-profit technology organization of the National League of Cities, the National Association of Counties, and the International City/County Management Association.) For a survey of local government policies relating to the distribution of digital geographic information, see H.J. Onsrud, J.P. Johnson, and J. Winnecki (1996), "GIS Dissemination Policy: Two Surveys and a Suggested Approach," Journal of Urban and Regional Information Systems, Vol. 8, No. 2, pp. 8-23.

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A Question of Balance: Private Rights and the Public Interest in Scientific and Technical Databases competition law. Significant augmentation of the existing legal regime is provided for online databases by various technical means as well as by additional market-based measures. Legal Protections Copyright Law A database can be protected under the Copyright Act as a "compilation," defined as a work that results from the collection and assembly of data that are "selected, coordinated, and arranged" in an original way.31 As the Supreme Court stated in the Feist decision, if the selection or arrangement of the data displays a "modicum of creativity" it is protectable by copyright.32 The term of copyright protection is long—the life of the author plus 70 years, or in the case of a work for hire, the shorter of 95 years from first publication or 120 years from the year of creation.33 An unauthorized reproduction, which is not otherwise privileged by the law, is illegal, and substantial civil and criminal remedies exist to punish infringers.34 Since the fall of 1998, copyright law has prohibited the manufacture and sale of devices designed primarily to circumvent technologies such as signal scrambling and encryption that are used to protect copyrighted works. Beginning in the fall of 2000, the law will also prohibit the attempt to circumvent such technological protections. The 1998 law, known as the Digital Millennium Copyright Act,35 contains some exemptions for libraries, educational institutions, law enforcement, and research activities, and opens the possibility of additional future exemptions to be made after further study of the statute' s operation by the Librarian of Congress. The new statute also prohibits the removal or alteration of "copyright management information" from copyrighted works. "Copyright management information" essentially means any identifying mark, such as the name and address of an author or copyright rights holder that is associated with a work.36 The copyright law, however, permits some unauthorized uses that are deemed to be "fair" or that are specifically exempted from infringement in the statute.37 Section 107 of the 1976 Copyright Act states that: 31   17 U.S.C., section 101. 32   Feist, note 1. 33   17 U.S.C., section 302. 34   17 U.S.C., sections 501-512. 35   Digital Millennium Copyright Act, P.L. 105-304 (October 28, 1998), U.S. Congress, Washington, D.C. 36   17 U.S.C., sections 1201 and 1202. 37   17 U.S.C., section 107.

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A Question of Balance: Private Rights and the Public Interest in Scientific and Technical Databases . . . the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.38 A more significant limitation on copyright protection, particularly for databases, is that copyright protects only the manner of expression and does not "extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery" incorporated into a copyrighted work.39 For some databases, the line between protected expression and unprotected facts can be difficult to identify. Generally speaking, however, copyright would most likely protect the selection or arrangement of a database, but not the data as such. Consider, for example, a scientific journal article reporting the results of an experiment, with the data from the experiment reproduced as an appendix in a database qualifying as a compilation. Copyright would protect the narrative description of the experiment, but subsequent researchers could use the findings of the experiment without permission. Moreover, other researchers could extract the data from the appendix. Unlike in Europe and in many other countries, U.S. copyright law does not protect works of authorship created by the federal government. 40 This asymmetry is significant, since a similar asymmetry with the European Union would exist upon enactment of any new database protection legislation in the United States. Because of the speculative nature of the outcome of basic scientific research, much science is conducted with the use of public funds by researchers in government and in academia who do not directly depend financially on the economic exploitation of their results. The realities of the scientific process and the limited legal protection for data under copyright law have contributed to the tradition and culture within the scientific community of open sharing of ideas and data discussed in Chapters 1 and 2. 38   17 U.S.C., section 107. 39   17 U.S.C., section 102(b). 40   17 U.S.C., section 105.

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A Question of Balance: Private Rights and the Public Interest in Scientific and Technical Databases Private Contracts and Licensing Rights holders of trade secrets may protect the confidentiality of their information by disclosing the information only to those who agree, in a binding contract, to keep it confidential and to refrain from reproducing the information. Where two individuals bargain face to face and one agrees to disclose in return for a promise of confidentiality, a court ordinarily will enforce the terms as it would any other contractual provision. If the information is sold outright to another party—such as when a book is sold to a consumer—contractual restraints on the buyer's right to use or resell the copy usually are not enforced. 41 Increasingly, however, information products are not "sold," but rather are licensed with restrictive terms as to use.42 For example, all the commercial database vendors who participated in the committee's January 1999 workshop, as well as those not-for-profits that disseminated their data for a fee, indicated that they relied primarily on site licensing arrangements for disseminating their databases to customers. Because customers typically have the opportunity to read the license terms and conditions in advance, and even to make agreed-upon changes, such terms are ordinarily enforceable. Database rights holders can easily protect their interests with a confidentiality agreement when distribution of a database is limited to those who directly contract with them. The fact that contract terms are only effective between the contracting parties and not binding on third parties who may get access to the database has been cited as a weakness,43 since many databases must be publicly distributed in order to be commercially viable. In recent years, however, rights holders of some digital databases have marketed their databases to the public using "shrink-wrap" license agreements. These are agreements that are enclosed within the package containing the database (usually a database on a CD-ROM or on other electronic media) and provide notice on the outside of the package that 41   The "first sale" doctrine of copyright law, 17 U.S.C., section 109, specifically authorizes the rights holder of a copy to "sell or otherwise dispose of" the copy. See also Bobbs-Merrill v. Straus , 210 U.S. 339 (1908). 42   For a discussion of the emerging legal issues pertaining to online database and information licensing, see the special issue on licensing of information and proposed changes to Article 2B of the Uniform Commercial Code (UCC) in Berkeley Technology Law Journal (1998), Vol. 13, No. 3, and in California Law Review (1999), Vol. 87, No. 1. Both present the results of a symposium, "Intellectual Property and Contract Law for the Information Age," held at the University of California, Berkeley, in April 1998. The symposium Web site is at <www.sims.berkeley.edu/BCLT/events/ucc2b/ucc2b.html>. In April 1999, however, the efforts to amend UCC Article 2B were terminated and the proposed revisions to state law in this area were proposed instead as the "Uniform Computer Information and Technology Act" For comprehensive background information on the evolution of this issue, see generally "A Guide to the Proposed Uniform Computer Information Transactions Act" online at <www.2Bguide.com>. 43   See U.S. Copyright Office (1997), Report on Legal Protection for Databases, U.S. Congress, Washington, D.C., available online at <lcweb.loc.gov/copyright/reports>.

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A Question of Balance: Private Rights and the Public Interest in Scientific and Technical Databases breaking the "shrink-wrap," or entering the electronic gateway if online, constitutes acceptance of the terms within. These terms often include restrictions on distribution of the database to others. The enforceability of these provisions remains uncertain, however. Some legal scholars argue that the shrink-wrap license constitutes a valid contract, while others believe that a contract cannot exist unless the parties have access to the terms prior to paying for the product. 44 Similarly, some leading cases have upheld the shrink-wrap license and the terms that restrict use;45 other cases have refused to enforce the terms of a shrink-wrap license.46 Most shrink-wrap licenses permit the licensee to return the product, unused, if the terms are unacceptable. The reality is that most consumers do not read these license terms. Private transactions are an important method of distributing valuable information and are increasingly the method of choice for providing access to data and information on the Internet. On the one hand, particularly with vulnerable digital information, the right to distribute information with restrictions on use allows original rights holders of databases to capture the economic returns from their initial investment. Moreover, private transactions are flexible in permitting the two parties to tailor their agreement to the mix of their particular interests, as long as they have the opportunity to negotiate the terms. On the other hand, enforcing "contractual" terms imposed through shrink-wrap licenses (and now "click-on" licenses in the online medium), which effectively are imposed on the public at large, may interfere with the balance between private property rights and public-interest access to information.47 A term in a shrink-wrap or click-on license that prohibits what would otherwise be a privileged use of the data might effectively limit scientists' access to or use of the raw materials necessary for their research, contrary to public-interest policies. Trade Secret Law State trade secret law protects valuable commercial information that is kept secret by its rights holder from unauthorized access or reproduction by improper means.48 Trade secret doctrines do not require that the information be kept absolutely secret, but the trade secret rights holder must take reasonable steps to maintain the confidentiality of the information. Trade secret law also might be 44   See generally, Mark Lemley (1995), "Intellectual Property & Shrinkwrap Licenses," USC L. Rev., Vol. 68, p. 1269. 45   Pro CD v. Zeidenberg, 86 F.3d. 1447 (7th Cir. 1996). 46   Vault Corp. v. Quaid Software Ltd., 655 F. Supp. 750 (1987). 47   See J.H. Reichman and Jonathan Franklin (1999),. "Privately Legislated Intellectual Property Rights: Reconciling Freedom of Contract with Public Good Uses of Information," U. Penn. Law Review, Vol. 147, p. 875. 48   See generally, Restatement (Third) of Unfair Competition, sections 39-45 (1995).

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A Question of Balance: Private Rights and the Public Interest in Scientific and Technical Databases applicable in the absence of any contractual provisions for confidentiality if the parties understood that the disclosure was in fact in confidence. Once information is made public it loses its secrecy and enters the public domain. It then can be free for others to use, absent some form of protection, such as copyright. Unfair Competition Law in State Common Law When Congress acts in areas in which it has authority (e.g., copyright, interstate commerce), federal law preempts state law when Congress explicitly so states in the legislation, or when state law would interfere with implementation of the federal law. The copyright system preempts state laws that duplicate or disrupt the protection accorded works of authorship by copyright.49 Thus, states may not grant a general right to database owners to prevent unauthorized reproduction or use of databases that qualify as an original work of authorship, and it is unlikely that they could grant a naked right against reproduction or use to unoriginal databases. However, in some states, a common law cause of action for misappropriation is understood to survive preemption and under limited circumstances may provide protection to some database owners from certain forms of unfair competition. The doctrine of misappropriation derives from the early U.S. Supreme Court decision in International News Service v. Associated Press.50 In that case, a news wire service appropriated the dispatches of a competing service from published newspapers on the East Coast and published them simultaneously and in direct competition with the originating service on the West Coast. The Supreme Court, while denying that a statutory property right could exist in the news, found that the unauthorized appropriation in this case was prohibited because compiling the data gave rise to a "quasi-property right" and also because the unauthorized appropriation directly undermined the investment in news gathering of the originating service. Courts have usually been reluctant to apply the decision beyond the facts of the case, and the Restatement (Third) of Unfair Competition, section 38 (1995) described the misappropriation doctrine as lacking a coherent application. 51 The most recent discussion of the misappropriation doctrine occurred in National Basketball Ass'n v. Motorola, Inc.52 Although the court recognized a limited scope for the doctrine—one confined to situations in which time-sensitive 49   Restatement (Third) of Unfair Competition, section 301 (1995). Cf. Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225 (1964); Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234 (1964); and Bonito Boats Inc. v. Thunder Craft Boats, Inc. 489 U.S. 141 (1989). 50   248 U.S. 215 (1918). 51   But see Goldstein et al. v. California, 412 U.S. 546 (1973) allowing state misappropriation protection of noncopyrightable sound recordings. 52   105 F.3d 841 (2d Cir. 1997).

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A Question of Balance: Private Rights and the Public Interest in Scientific and Technical Databases data were appropriated and used in direct competition with the originator—it refused the request of a professional basketball league to prohibit the unauthorized taking and distribution of the scores of its currently played games to paid subscribers of a paging service. While database rights holders can and do assert protection under the misappropriation doctrine, the reluctance of the courts to apply this doctrine and the likelihood that its broad application would be preempted by the Copyright Act makes the misappropriation doctrine of questionable value in protecting databases beyond those with extremely time-sensitive value, such as real-time stock-price quotations. However, nothing prevents Congress from developing a minimalist form of statutory protection that builds on this foundation. Technological Protections The danger of database misappropriation can be mitigated with increasing efficiency by technologies that help enforce the terms of licensing contracts, or that enable the rights holder to keep the database as a trade secret while also providing access to subsets of data at arm's length.53 A number of technological innovations have been developed to provide various forms of security, privacy protection, and intellectual property management. Table 3.1 provides a summary of some of these approaches. No form of computer protection is perfect, and no method will likely prevent copying of small amounts of data. Moreover, it is almost certain that every technological security method will eventually be able to be countered through the use of other technological advances. The technological 53   The committee did not focus extensively on the increasingly important area of technological protections for digital information, because a concurrent NRC report is examining this issue in depth. See Computer Science and Telecommunications Board, National Research Council (2000), The Digital Dilemma: Intellectual Property in the Information Age, National Academy Press, Washington, D.C., in press. For additional information on these technologies, see Mark Stefik and Teresa Lunt, "Overview of Technologies for Protecting and Misappropriating Digital Intellectual Property Rights: The Current Situation and Future Prospects," Chapter 5 in the committee's online Proceedings. See National Research Council (1999), Proceedings of the Workshop on Promoting Access to Scientific and Technical Data for the Public Interest: An Assessment of Policy Options, National Academy Press, Washington, D.C., <http://www.nap.edu>. Also see Berkeley Technology Law Journal, Vol. 13, No. 3, Fall 1998 (issue dedicated to intellectual property and contract law); I. Trotter Hardy' (1998), Project Looking Forward: Sketching the Future of Copyright in a Networked World, report prepared for the U.S. Copyright Office; Mark Stefik and Alexander Silverman (1997), "The Bit and the Pendulum: Balancing the Interests of Stakeholders in Digital Publishing" American Programmer, September, pp. 18-35 (also published in The Computer Lawyer, Vol. 16, No. 1, pp. 1-15, January 1999); Brian Kahin and Kate Arms, eds. (1996), Proceedings: Electronic Commerce for Content , Forum on Technology-Based Intellectual Property Management, Interactive Multimedia Association, Annapolis. MD; Bruce Schneier (1996). Applied Cryptography, second edition, John Wiley & Sons. New York; and Lars Lyberg, ed. (1993), Journal of Official Statistics, Special Issue on Confidentiality and Data Access, Vol. 9, No. 2, Statistics Sweden.

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A Question of Balance: Private Rights and the Public Interest in Scientific and Technical Databases TABLE 3.1 Summary of Technological Approaches to Protection of Databases Approach What It Does Domain of Use Limitations Encryption Codes information so that a secret key is needed in order to read it Any digital data; protects data during storage and transmission Protection vanishes when data decrypted for use; strong security required for safeguarding keys Watermarking Embeds covert tracing or identifying information Digital photos, music, text, and databases Can be easy to remove or tamper with; may confound data merging Download limitations Limits amount of data that can be downloaded at one time or from one site Currently deployed; discourages wholesale, automatic downloading of databases from the Web Presents only a weak barrier to a determined adversary Database access control Classifies data in a database into different levels or groups for access, and limits use based on agreed to set of rules Intelligence and business organizations in which individuals or different groups have access to different portions of a database according to job function or need to know More relevant to online databases than to offline scientific databases, or databases of more general interest Hardware-based trusted system Enforces a digital contract that governs fees for and uses of digital works High-security systems used mainly in military and intelligence applications Not widely deployed; inexpensive hardware augmentation provides only minimal support; outstanding legal issues about liability and enforceability of digital contracts Software-based trusted system Supports same functions as hardware-based trusted systems, except that support is provided only by software In trial use for distribution of video, music, and documents Vulnerable to being disabled by simple means; subject to wide-scale system failure triggered by computer viruses

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A Question of Balance: Private Rights and the Public Interest in Scientific and Technical Databases approaches that currently are available, however, can hinder or prevent, to varying degrees of efficiency, the wholesale copying and redistribution of databases without compensation to their rightful rights holders. These approaches are reviewed briefly in the discussion below. Encryption A powerful and frequently cited technology for computer security is encryption, the encoding of data to make them unreadable to those who do not have the key for deciphering them. Separating those who should have access from those who should not, encryption enables differences in level of security with increases in key length. Encryption is applicable to practically any kind of digital information. It is the technology of choice for protecting data in storage and during transmission over an insecure channel. But encrypted data are only as secure as the key, and there are different approaches to the problem of protecting the key. Given the data and the key, a knowledgeable user can decrypt the data and then distribute them, or distribute the encrypted data together with the key. If the protections in the system are insufficient, there are various ways in which an attacker could obtain the key or gain access to an unencrypted form of data (e.g., digital music or video while it is being played back, or text or data while they are being displayed). Thus, although encryption is an important element of any modem computer security system, it often must be combined with other elements in a security architecture to achieve the degree of protection desired for the digital data or information product. Watermarks The term "watermark" initially signified a special mark made in paper during its manufacture. The mark, which becomes visible when the paper bearing it is held up to a light, is taken as indicating an original. The term now covers a wide range of technologies for embedding information in digital files and rendered works, including text, pictures, and audio. As a technique for intellectual property protection, watermarks carry information that identifies a work or provides a means of tracing its purchaser or user. Watermarks can be visible or hidden. Hidden watermarks are designed to avoid interfering with the use of the data. For example, in digital music, watermarks can be encoded in such a way that they are not detectable to the human ear when the music is played. A watermark could be hidden in a database as extra (but unused) elements of data that would not interfere with information processing systems. Watermarks do not prevent copying but could potentially provide a means for tracing the source of an unauthorized copy. This trace-back capability provided by watermarks is not necessarily foolproof; those who would misappropri-

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A Question of Balance: Private Rights and the Public Interest in Scientific and Technical Databases ate data or otherwise infringe on rights in a database might be able to write programs for tampering with or removing the watermarks. Such tampering may well be illegal under the recent Digital Millennium Copyright Act, however. Online Database Access Controls Several kinds of technology have been developed to control or limit access to databases, particularly those available online. One of the simplest is an online regulator, which limits the quantity of information that can be downloaded by a given individual or site. 54 The technology provides an impediment to automatic data mining programs that would acquire a database's contents by merging the results of a large set of individual queries. A second approach to online database access control marks the data according to different levels and categories and regulates the availability of the information to authorized parties. This technology is relevant in business and intelligence applications, where access to information is regulated according to "need to know" tiers or categories of access. Trusted Systems "Trusted" systems are those that can be relied on to obey certain rules for distributing information. In the context of intellectual property protection, the rules take the form of a digital contract between the information provider and user. The contract spells out fees and other terms and conditions of use, such as the period of time over which the information can be used and whether the user is allowed to print out or make copies of the information for distribution or sale. Trusted systems with secure hardware support have been used in military and intelligence organizations for several years and currently are in limited use in digital and networked publishing. For example, they support pay-per-view and subscription viewing of satellite television services. Software and hardware for distributing music via trusted systems are in early prototyping and testing stages, and systems supporting digital network document and software publishing are in limited use on personal computers and in "electronic books." Although trusted systems for database access could be developed, such currently available technologies possess minimal security and control measures. The systems seldom have digital contract provisions specifying more than the duration of the subscription and perhaps the number of simultaneous users. 54   For example, several of the commercial and not-for-profit database vendors at the committee's January 1999 workshop noted that this online protection strategy, in conjunction with other available technical measures and well-structured licensing terms, provided satisfactory protection for their businesses, despite the possibility that a determined individual could access and download from a database under multiple identities, or collude with others to do so, in order to reconstruct illegally the entire database.

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A Question of Balance: Private Rights and the Public Interest in Scientific and Technical Databases Several obstacles prevent effective, widespread deployment of trusted systems for databases. First, the legal standing of digital contracts enforced by machines has many practical limits with respect to enforceability and liability. Second, appropriate public-key infrastructure to support authentication and authorization is not yet widely used or available. Third, the only commercially viable approach to trusted systems for databases depends exclusively on software for implementing security, but software-only approaches are vulnerable to tampering and to widespread, catastrophic failure caused, for example, by computer viruses. Fourth, it can be both very costly and time consuming to attain the levels of confidence necessary to achieve a "trusted system," which conflicts with the rapid pace of the industry and time-to-market considerations. Summary of Technological Protections Several technological measures have been developed that can be deployed for management of intellectual property fights in databases. The main goal of protection is to prevent widescale unauthorized redistribution of databases without compensation to database rights holders. Although no totally effective technological solution has yet been developed to protect intellectual property comprehensively, several measures are already in use with increasingly satisfactory results. A potentially effective technological approach appears to be the use of trusted systems, with digital contracts that specify appropriate terms and conditions. These systems would use encryption technology for protecting databases during storage or communication, watermark technologies to enable tracing the source of pirated copies when such theft occurs, and database access controls and query governors to flexibly control database access. Current limitations affecting technology available for protection of ownership rights in databases include absence of a widespread public-key infrastructure for encryption, legal uncertainties about the enforceability of digital contracts, and the relatively low level of security that is possible with software-only security systems. In addition, despite advances in technological measures for protecting digital databases, human fallibility—or overt malicious action—will continue to result in system security breaches for the foreseeable future. Market-Based Database Protection Through Updating and Customizing There are various business practices that database vendors can use to protect their investments.55 One type of protection for databases arises from their commercial perishability. Many data become rapidly obsolete; consequently, data- 55   See Computer Science and Telecommunications Board (2000), The Digital Dilemma, note 53, in press.

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A Question of Balance: Private Rights and the Public Interest in Scientific and Technical Databases bases are updated frequently. For example, meteorological data and stock market prices are provided in real-time on a continuous basis. Some biotechnology databases are updated every night. Most commercially viable databases are updated at least annually. Since copying intrinsically introduces a lag, updating provides some level of protection against piracy, because the copier, like the database originator, must provide updates, thereby reducing the cost advantage of copying.56 Frequent updates can constrain the market price for a database because the most recent update competes with its previous version in the market, although the former versions may nonetheless be almost as useful. Database pricing will almost certainly permit recovering the cost of updating, but the cost of the original database might not be recoverable. Collaborations among the government, not-for-profit, and commercial-sectors, however, can overcome some of these problems. For example, as discussed at the January 1999 workshop, commercial meteorological, geographic, and biotechnology database producers utilizing the original data made available freely under the federal government's full and open access mandate have successfully marketed and disseminated their value-added databases. The joint effort of the original public data collector and commercial database value-adder and vendor accomplished the twin goals of enhanced data quality and wide dissemination at a reasonable price. Most important, in the context of this report, this broad distribution of data was achieved without statutory database protection. Another market-based approach used by database producers and vendors to limit the potential for misappropriation, while meeting the needs of their customers, is production of customized or targeted versions of their databases. Different versions of the same database tailored to different market segments can appeal to a broader swath of the market while making it more difficult for an unfair competitor to steal all versions and undermine the customer base.57 Finally, database producers or vendors who have a well-established reputation in the market will have an advantage over most competitors who would copy their products. Customers are frequently willing to pay more to vendors who are reputed to sell quality databases and data products. TIPPING THE BALANCE: THE EUROPEAN UNION'S DATABASE DIRECTIVE Other nations have legal and other protective measures for databases similar to those already in place in the United States, but a discussion of foreign law is 56   See Stephen M. Maurer in Appendix C of the committee's online Proceedings, note 53. 57   See generally. Carl Shapiro and Hal R. Varian (1998). "Versioning: The Smart Way to Sell Information," Harvard Business Review, Nov.-Dec., pp. 106-114.

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A Question of Balance: Private Rights and the Public Interest in Scientific and Technical Databases beyond the scope of this study. There is, however, one important new legal development—the aforementioned E.U. Database Directive—that is particularly relevant to the present discussion, since it has been cited by commentators58 as well as by congressional legislators 59 as a major driver for the adoption of a similar legal regime in the United States (see Appendix D for the full text of the directive). The E.U. Database Directive requires that each member country of the European Union (and affiliated states) adopt legislation protecting databases.60 The E.U. Directive imposes a uniform copyright provision that protects only the "selection or arrangement" of the contents of a database that is the "author' s own intellectual creation."61 Countries are permitted to provide for privileged unauthorized uses in accordance with the Berne Convention for the Protection of Literary and Artistic Works.62 The specific privilege recommended for not-for-profit educational or scientific uses is very narrowly limited, however, "for the sole purposes of illustration for teaching or scientific research as long as the source is indicated and to the extent justified by the non-commercial purpose to be achieved."63 The E.U. Directive also provides for an independent right to protect databases that are not protectable by copyright. The right attaches to any database that is a product of substantial investment and prohibits any extraction or reutilization of a substantial part of a protected database—judged qualitatively or quantitatively—without permission of the rights holder.64 The E.U. Directive provides that a noncopyrightable database is protected for 15 years from its date of completion.65 "Lawful users" of databases that have been made available to the public may extract or use insubstantial parts of the database for any purpose and may make other such use that does not conflict with the "normal exploitation of the database or unreasonably prejudice the legitimate interests of the maker of the database."66 Member states may, but are not required to, incorporate some very narrow and specific exceptions, including one for the purposes of illustra 58   See Reichman and Samuelson (1997), note 25. 59   See statement by Senator Orrin Hatch on Database Antipiracy Legislation, Cong. Rec., Vol. 106, S. 316 (Jan. 19, 1999). 60   E.U. Database Directive, note 2, Article 16. The directive required all member states to comply with its requirements by January 1, 1998. Only a few had done so by that date, and not all countries had complied as of September 1999. 61   Id, Article 3(1). 62   Id., Article 6. 63   Id., Article 6(2)(b). 64   Id, Article 7. 65   Id., Article 10. Although the nominal term of protection is limited to 15 years, Article 10(3) has the effect of extending protection in perpetuity to databases that continue to be updated or revised pursuant to a "substantial new investment, evaluated qualitatively or quantitatively." 66   Id, Article 8(2).

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A Question of Balance: Private Rights and the Public Interest in Scientific and Technical Databases tion for teaching or scientific research that is more limited than the one provided for under copyright.67 Most significant, from the U.S. perspective, the E.U. Directive provides that member states should make the protection applicable only to databases owned by nationals or habitual residents of a member state or to databases owned by nationals of a third country only if the third country offers comparable protection to databases produced by nationals of a member state.68 Although preliminary drafts of the E.U. Database Directive were founded on an unfair competition law model of database protection, the final version was based on a strong property rights model. The initial right to exclude extraction or use applies even when the unauthorized use is not a competitive threat to the protected database. Only express privileged uses can escape potential liability. The privilege for scientific research appears to apply only for non-commercial purposes, and this is further qualified by an ambiguous limitation for the purposes of illustration. Since most scientific research has at least the potential for commercial application, including commercial publication, and is not simply for ''illustration," the privilege may turn out to be a very narrow one, indeed, even if it is adopted by a member state. Similarly, the "insubstantial part" exception is undermined by the qualitative impact test. Moreover, the term of the right is 15 years, and potentially much longer, a very long period given the commercial half-life of many kinds of scientific data.69 When combined with unrestricted online licensing rights, strong database protection legislation such as the E.U. Directive subjects a research user of, say, a chemical handbook, to a starkly different situation than that experienced under traditional copyright law under the print paradigm. Table 3.2 provides a summary comparison of research user rights under these two legal regimes.70 The net result of unrestricted licensing coupled with strong statutory database protection is that the most borderline of all the objects of protection under intellectual property law—raw or factual data, whether S&T or any other—paradoxically receives the strongest scope of protection available from any intellectual property regime except, perhaps, patent law.71 The committee believes that the adoption of a law such as the E.U. Directive, either in the United States or internationally, would retard the advancement of science, the growth of knowledge, and opportunities for innovation. 67   Id., Article 9(b). 68   Id., Recital 56 and Article 11. 69    See the discussion of the term of protection in Chapter 4. 70   See J.H. Reichman and Paul F. Uhlir (1999), "Database Protection at the Crossroads: Recent Developments and Their Impact on Science and Technology," Berkeley Technology Law Journal, Vol. 14, No. 2, pp. 799-821. 71   Reichman and Samuelson (1997), note 25, p. 94.

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A Question of Balance: Private Rights and the Public Interest in Scientific and Technical Databases TABLE 3.2 Summary Comparison of Not-for-Profit Research User Rights Under Traditional Copyright and Under Online Licensing When Combined with Sui Generis Database Protection Legislation Traditional Copyright Law Licensing Plus Sui Generis Protection Such as Provided by the E.U. Database Directive 1. User can immediately use all disparate factual data and information disclosed in a database; copyright law does not protect ideas or facts. Fair use exception available for certain additional research or educational uses, even of protected expression. 1. Even after paying for access to factual data and information, which are not copyrightable by definition, user faces limitations on use in any ways prohibited by the license and as reinforced by the legislation; user cannot distribute another database, using the same factual data or information, without either seeking permission and perhaps paying another fee or regenerating those protected data independently. 2. User can independently create another version of a database and sell it; copyright law allows independent creation, and all factual data are in the public domain. 2. User can independently create another version of the database. If this is not possible, user needs a license or permission to combine legitimately accessed factual data or information into a derivative data product; the licensor can claim that the user is violating redistribution and other rights, and the user must guess what courts will consider to be a quantitatively or qualitatively insubstantial part of the database; the licensor is under no duty to grant such a license; and if a sole-source, the licensor may not want any competition from follow-on products. 3. User can combine noncopyrightable factual data with other data and information into a multiple-source or interdisciplinary database for research or educational purposes without permission or additional payment to the originators.a 3. User cannot lend, give, or sell data to others even after paying for access (unless permitted by the license) because there is no first sale, only a license; user would have to obtain express permission and perhaps pay additional fees to avoid the risk of harming the market (e.g., possibly causing one lost sale). 4. User can make limited or "fair use" of even protected expression for not-for-profit research or classroom purposes; such uses often deemed fair or privileged uses under statutory law or precedents. 4. Because there are no limits on licensing, user is subject to database vendor overriding even those exceptions contained in the legislation, including exceptions for research, education, or other public-interest uses. 5. Following the first purchase of a copyrightable database in hard copy, user can lend, give, or resell it to anyone else under the first sale doctrine, borrow it from a library, use it at any time for virtually any [lawful] purpose, and make a copy of it for personal or scholarly purposes. 5. During the period of protection, user rights depend on the terms of the license supported by the new property right; database would not enter the public domain for at least 15 years (and in Europe possibly never if the rights holder continues to invest in maintenance or updates of a dynamic database). NOTE: This summary table was compiled from a more detailed comparative discussion presented in an article by J.H. Reichman and Paul F. Uhlir (1999), "Database Protection at the Crossroads: Recent Developments and Their Impact on Science and Technology," Berkeley Technology Law Journal, Vol. 14, No. 2, pp. 799-821. a Acknowledgment of sources is an appropriate academic norm, but their express permission is not required.