The bill that was introduced last session, as Marybeth Peters pointed out, has many of the same features as the European sui generis model. It was characterized yesterday as a misappropriation or unfair competition approach, and I think we should discuss what that model is before we move on to the general discussion. I was wondering if Peter Jaszi might give some introductory comments about the relationship of these two; and we can use that as a point of departure.
MR. JASZI: I will certainly try. As I was looking at the questions last night and trying to decide what was meant by a “strong property rights model,” a phrase that is used in the question sheet, I thought about the relationship between the European—as it is sometimes called sui generis—intellectual property rights approach on the one hand and the so-called, and I would stress so-called, “misappropriation” approach of H.R. 2652, the House bill that ultimately contained Title V of H.R. 2281, on the other.
I am pleased to hear that in her presentation yesterday, which I had to miss, Marybeth Peters stressed the functional similarity between these two approaches, the sui generis approach and the so-called “misappropriation” approach, because, at least from my standpoint, they have much more in common than they have notable differences, at least functionally considered. Therefore I think it would make sense, and I would propose, that for the purposes of this discussion we might group the two together as different examples of the strong property rights model. I think of them as both representing proposals for database protection of biblical proportions—that is, protection is applicable wherever two or more data points are gathered together.
The critical shared characteristic of these two approaches is that however they may be styled and however their goals and objectives may be stated, their effect is similar. In the case of the sui generis model, the stated goal or objective is simply to provide intellectual property protection for compilations of data as such, and in the case of the so-called “misappropriation” approach, the stated objective is to provide protection for the investment that resides in or that goes into such compilations of data. Their effect is to provide, functionally speaking, protection for data as such. The central prohibition that you find in each of these different models of strong property rights legislation and the sui generis approach or the so-called “misappropriation” approach, is a prohibition against the extraction and use of items of information from a compiled database.
The database may be the subject matter of protection. The goal of the protection may be to safeguard investment in databases, but the way in which these goals are accomplished is by prohibiting extraction and use of items of data as such. So, functionally speaking, in either case we are looking at a model under which protection attaches to items of data through prohibitions against unauthorized extraction and use.
What else do the two models have in common? Each includes a broad inclusive definition of the kind of information that is covered by its provisions and of the kinds of activities on the part of a compiler of information which give rise to protection of the so-called “misappropriation ” bill.
H.R. 2652 in the last Congress, for example, spoke of protection for information collected, organized, or maintained by a database provider. As a result, such legislation reaches almost every imaginable form of compiled information. It is hard to identify, in fact, any category of information or form of information product to which it would not apply. So that is a