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.

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