Cover Image

Not for Sale

View/Hide Left Panel

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.


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.

The National Academies | 500 Fifth St. N.W. | Washington, D.C. 20001
Copyright © National Academy of Sciences. All rights reserved.
Terms of Use and Privacy Statement