The committee believes, however, that the need for additional statutory protection has not been sufficiently substantiated. The high level of activity in the production and use of digital S&T (and other) databases in the United States serves as prima facie evidence that threats of misappropriation do not constitute a crisis. Nor do the existing legal, technical, and market-based measures provide a chronic state of underprotection for proprietary databases. The almost universal use of licensing, rather than sale, of online databases and other digital information, coupled with technological enforcement measures, on balance potentially provides much stronger protections to the licensors vis-à-vis their customers than they enjoyed prior to Feist and under the print media copyright regime (see Table 3.2 in Chapter 3). While some of the current law providing protection to database rights holders remains uncertain in terms of scope of applicability, the trend in recent years has been to broaden, rather than narrow, applicable intellectual property protections.

Moreover, strong statutory protection of databases would have significant negative impacts on access to and use of S&T databases for not-for-profit research and other public-interest uses. Nevertheless, although the committee opposes the creation of any strong new rights in compilations of factual information, it recognizes that limited new federal legal protection against wholesale misappropriation of databases may be appropriate. In particular, a balanced alternative to the highly protectionistic E.U. Database Directive could be achieved in a properly scoped and focused new U.S. law, one that might serve as a model for an international treaty in this area.

In this chapter, the committee examines several legislative options and related government activities, and recommends a number of legislative principles and policy actions to help inform the current debate. The chapter concludes with a recommendation directed specifically to the not-for-profit S&T community.

ASSESSMENT OF LEGISLATIVE OPTIONS, WITH RECOMMENDATIONS ON GUIDING PRINCIPLES

The committee assessed and compared three separate proposals for increased database protection of private-sector databases in the United States that were placed in the Congressional Record at the beginning of the 106th Congress.3 During the 105th Congress, the House of Representatives twice approved a measure establishing a specific statutory scheme for the protection of databases—H.R. 2652 4 and Title V of H.R. 2281,5 which was substantially the same as H.R.

   

use of factual data for both public interest and commercial purposes will benefit the U.S. economy and society to a greater extent.

3  

Cong. Rec., Vol. 106, S. 316 (Jan. 19, 1999).

4  

H.R. 2652, the "Collections of Information Antipiracy Act," 105th Congress (1997).

5  

H.R. 2281, Title V, the "Collections of Information Antipiracy Act," 105th Congress (1998).



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