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Keynote Address

Q. Todd Dickinson

I am very pleased to be here. I want to thank the National Research Council for inviting me to give these remarks this morning, and our sister agency at the Department of Commerce, the National Oceanic and Atmospheric Administration, for its enormous contribution in making this workshop possible. Paul Uhlir of the NRC not only organized this workshop, but also has been a voice of reason in the Washington debates over the past couple of years over database protection and access issues.

Over the next two days, this workshop will explore the scientific uses of data and proposals for the legal protection of commercial data. A few years ago, there wasn't much interaction between these two issues, but there are two words that you will hear quite often in the legal discussion over the next couple of days. The first word, “Feist,” refers to a 1991 Supreme Court decision, Feist Publications, Inc. v. Rural Telephone Service Co. [499 U.S. 340, 111 S. Ct. 1282 (1991)]. The Supreme Court of the United States held that a modicum of creativity is needed for any copyright protection, and that in the case of factual compilations, the copyright extends only to those elements in the selection of the compilation that show creativity.

The result in Feist, and a couple of alarming Circuit Court decisions that have followed it, as well as the European Union's recent development of a new form of intellectual property protection for databases, have caused U.S. commercial database producers to call for some form of legal protection for databases that is separate from copyright.

A second word that you will hear a great deal today is “digital.” The commercial producers' call for legal protection is particularly salient now because of the characteristics of the emerging digital environment. We at the Patent and Trademark Office believe that the pressures created by the Internet and digitization would have brought not-for-profit research and commercial interests into greater contact, and perhaps conflict, even if there had been no Feist decision. Even without Feist, there are questions about how we import fair-use concepts from the analog world into the digital environment. Without the Feist decision, we would still be living in a world where government engages with the private sector in more and more cooperative ventures that generate data that are valuable to society.

The question, as always, is, Who should get access to this information and on what terms? In 1998, the House of Representatives passed the Collections of Information Antipiracy Act, H.R. 2652. There was also a time when this legislation came very close to passing in the U.S. Senate.

In response to these developments the Administration formulated a set of principles to govern its own position on database protection and access legislation. Justin Hughes from the Patent and Trademark Office and Brian Kahin from the White House Office of Science and Technology Policy spearheaded that Administration effort. As stated in those principles, which took the form of a letter from Andrew Pincus, who is general counsel for the Department of Commerce, the Administration believes that some form of legal protection is needed for commercial database producers.

We also believe several other things. One, any law needs to be clear and predictable. Two, we must generally ensure that databases developed with government funding do not fall



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PROCEEDINGS OF THE WORKSHOP ON PROMOTING ACCESS TO SCIENTIFIC AND TECHNICAL DATA FOR THE PUBLIC INTEREST: AN ASSESSMENT OF POLICY OPTIONS 2 Keynote Address Q. Todd Dickinson I am very pleased to be here. I want to thank the National Research Council for inviting me to give these remarks this morning, and our sister agency at the Department of Commerce, the National Oceanic and Atmospheric Administration, for its enormous contribution in making this workshop possible. Paul Uhlir of the NRC not only organized this workshop, but also has been a voice of reason in the Washington debates over the past couple of years over database protection and access issues. Over the next two days, this workshop will explore the scientific uses of data and proposals for the legal protection of commercial data. A few years ago, there wasn't much interaction between these two issues, but there are two words that you will hear quite often in the legal discussion over the next couple of days. The first word, “Feist,” refers to a 1991 Supreme Court decision, Feist Publications, Inc. v. Rural Telephone Service Co. [499 U.S. 340, 111 S. Ct. 1282 (1991)]. The Supreme Court of the United States held that a modicum of creativity is needed for any copyright protection, and that in the case of factual compilations, the copyright extends only to those elements in the selection of the compilation that show creativity. The result in Feist, and a couple of alarming Circuit Court decisions that have followed it, as well as the European Union's recent development of a new form of intellectual property protection for databases, have caused U.S. commercial database producers to call for some form of legal protection for databases that is separate from copyright. A second word that you will hear a great deal today is “digital.” The commercial producers' call for legal protection is particularly salient now because of the characteristics of the emerging digital environment. We at the Patent and Trademark Office believe that the pressures created by the Internet and digitization would have brought not-for-profit research and commercial interests into greater contact, and perhaps conflict, even if there had been no Feist decision. Even without Feist, there are questions about how we import fair-use concepts from the analog world into the digital environment. Without the Feist decision, we would still be living in a world where government engages with the private sector in more and more cooperative ventures that generate data that are valuable to society. The question, as always, is, Who should get access to this information and on what terms? In 1998, the House of Representatives passed the Collections of Information Antipiracy Act, H.R. 2652. There was also a time when this legislation came very close to passing in the U.S. Senate. In response to these developments the Administration formulated a set of principles to govern its own position on database protection and access legislation. Justin Hughes from the Patent and Trademark Office and Brian Kahin from the White House Office of Science and Technology Policy spearheaded that Administration effort. As stated in those principles, which took the form of a letter from Andrew Pincus, who is general counsel for the Department of Commerce, the Administration believes that some form of legal protection is needed for commercial database producers. We also believe several other things. One, any law needs to be clear and predictable. Two, we must generally ensure that databases developed with government funding do not fall

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PROCEEDINGS OF THE WORKSHOP ON PROMOTING ACCESS TO SCIENTIFIC AND TECHNICAL DATA FOR THE PUBLIC INTEREST: AN ASSESSMENT OF POLICY OPTIONS under the exclusive control of private parties that limit the dissemination of those databases to the public. Three, we have to be careful that any database protection regime does not have unintended consequences. Four, any law must provide exceptions roughly analogous to fair-use principles, so that there are minimal effects on noncommercial research. Last fall, the Administration worked hard to express its concerns about H.R. 2652 to both the House and the Senate, including making some recommendations on how to improve the bill for database users. If and when that legislative process starts again, the Administration expects to be engaged on this issue. The Office of Science and Technology Policy, the Patent and Trademark Office, and the Commerce Department are continuing to lead the Administration's efforts on atabase protection and access, along with participation from the Justice Department and continued input from the National Science Foundation, the Department of Energy, the State Department, and other concerned agencies. We all believe that an appropriate legal framework can be developed. Unlike proposals for a sui generis1 form of intellectual property, H.R. 2652 took the approach of protecting a commercial database producer's investment from acts of misappropriation that would unfairly harm that investment. Later today you will be hearing much more about H.R. 2652. Let me say that the misappropriation approach is certainly one familiar to the American legal system. Recognizing misappropriation of information as an unfair business practice goes back to the Supreme Court's 1918 International News Service decision [International News Service v. Associated Press, 248 U.S. 215 (1918)]. It is also very closely related to the jurisprudence of trademark law, especially the federal Lanham Act (Trademark Act of 1946). Protection of trademarks ensures both that consumers receive accurate information about the source of goods and that commercial investments in trademarks are protected from unfair business practices. A company will be willing to invest in giving its trademark meaning for consumers only if it knows that other companies will not be able to steal the trademark to pass off other goods and services. In short, I think there is a rich vein of analysis about unfair competition in American law that would help us better understand and implement a misappropriation approach to database protection. Let me close with a couple of comments about government information, particularly government-generated scientific and technical data. As I said before, the Administration is dedicated to the general proposition that government-generated data should not be captured by any private entity. The Patent and Trademark Office is a generator of data as well. Our database of patents and trademarks goes back to 1790. Later this year, in March, we will have completed a project we began last fall, of putting our entire database of patents back to 1976, which is roughly half of our data, and all of our trademarks up on the Internet, freely searchable. That is roughly 1.3 terabytes of information. I am told it will be the largest government database on the Internet. So, we are committed to this process as well. This greater accessibility to scientific and technical data should be a tremendous boon for those of you who are in both basic and applied research, and particularly for scientists and researchers in developing countries. 1   The term sui generis means “of its own kind or class” (see Black's Law Dictionary 1434, West 6th ed., 1990). The literature refers to special-purpose intellectual property laws that deviate significantly from the classic patent and copyright paradigms as “sui generis” regimes.

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PROCEEDINGS OF THE WORKSHOP ON PROMOTING ACCESS TO SCIENTIFIC AND TECHNICAL DATA FOR THE PUBLIC INTEREST: AN ASSESSMENT OF POLICY OPTIONS Later today you will have many discussions about data generated by the government or with government support, including meteorological data, genomic data, geographic data, and physical sciences data. What all of you know already, and what will become even clearer, I think, from this workshop, is that even when we agree that government-generated data should reach the public at minimal cost, how to achieve that goal remains a very complex problem. Yet, formulating a clear, workable, U.S. position on database protection, which continues to ensure that government-generated data remain available to the public sector, may be critical in the international area to stave off efforts by other countries to impose conditions and controls on the dissemination of government-generated data. For all these reasons, we are thankful to the NRC and to NOAA for organizing this event. ThePatent and Trademark Office is very happy to be participating, and we look forward to the contribution that this workshop will make to this year's discussion about database protection and access issues. Thank you very much. General Discussion DR. FORESMAN: Tim Foresman, University of Maryland. Could you give us a definition of what you mean by government-funded data or government-generated data? MR. DICKINSON: I am a lawyer. I am unfortunately not given to very precise definitions all the time. I am hopeful that we can take away from this workshop a greater understanding of what we do mean by government-generated data. I think from the Patent and Trade Office perspective, we are talking about federally generated data. I think that others would take other approaches, depending on their perspective on who is generating data and where they sit. I think basically what the Administration is representing is federally generated data.