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Editor: W. Patrick Tandy

March, 2004

 

Database Protection Bill Creates Controversy

By Deborah Mack


It’s been said that “information wants to be free.” However, certain types of information are often only available at a price. For attorneys, that can still include the cost of books for their libraries, but online databases are increasingly taking over as the sources of choice for doing legal and other research. Like other industries that provide digital content – e.g., music and computer software – the database publishing industry has become concerned about unauthorized copying and redistribution.

At the urging of database producers, Congress is considering H.R. 3261, the “Database and Collections of Information Misappropriation Act.” Database producers believe national legislation is necessary to protect their products. However, others argue that the bill is poorly written, unnecessary and might limit access to information.

The bill, while subject to certain exceptions, would impose civil liability upon any person who “makes available in commerce to others a quantitatively substantial part of the information in a database generated, gathered, or maintained by another person,” knowing that it is without the database provider’s authorization. The database must be “generated, gathered, or maintained through a substantial expenditure of financial resources or time”; made available in a “time sensitive manner” and cause injury to the copied database; and the database’s unauthorized availability must reduce the original producer’s incentive to produce it so that its existence or quality becomes “substantially threatened.” Government and federally-mandated databases as well as computer programs are not protected.

By and large, databases are collections of facts, and facts aren’t entitled to copyright protection. However, “compilations” – works “formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship” – are protected. So do databases qualify as compilations?

It depends. Before 1991, some courts tried to extend copyright protection to database content based on the work that went into compiling it, a concept known as the “sweat of the brow” theory. That doctrine was rejected, however, when the U.S. Supreme Court decided Feist Publications Inc. v. Rural Telephone Service Co. Inc.

In that case, Feist Publications used information from Rural Telephone’s directory to create a competing telephone directory, and Rural sued for copyright infringement. Rural argued that Feist should have done primary research, such as door-to-door or telephone interviews, rather than using the information from its directory. Feist claimed the information wasn’t entitled to copyright protection.

The Supreme Court ruled that facts couldn’t be copyrighted, but a factual compilation could be if the facts within it were chosen or arranged with a minimal amount of originality. However, the court found Rural’s directory wasn’t original enough to merit such protection.

According to a House Judiciary Committee report dated Feb. 11, 2004, each Congress since 1996 has considered a database anti-piracy bill, none of which have been enacted. The report states that H.R. 3261 represents a “consensus bill,” developed with substantial input from stakeholders.

Organizations like the Coalition Against Database Piracy strongly support the bill. The coalition, which includes members such as Reed Elsevier Inc., provider of Lexis-Nexis, and the West Group, argues that state laws are inconsistent and the national scope of the information industry requires a national law. The group also disagrees with the contention that it’s trying to establish property rights over facts.

“The facts in a database are there to be used,” according to the coalition’s website. “Database protection legislation would only apply when someone steals large parts of a database and makes that available in a way that causes significant injury to the market for or value of the database.”

Critics include a wide range of business, technology, research and public interest groups, such as the U.S. Chamber of Commerce, the Electronic Frontier Foundation and several library associations. These groups, along with several private companies that include Amazon.com, Comcast, Google and Verizon, have formed a coalition against the bill.  In a Jan. 15, 2004, letter to two of the bill’s co-sponsors, this coalition claimed that databases are adequately protected by existing federal and state laws, including federal copyright and anti-hacking laws and state contract and tort laws. In addition, the critics expressed the fear that H.R. 3261 would “lead to the growing monopolization of the marketplace for information, where the ability to use facts is increasingly controlled by a small number of international publishing houses.”

As users of legal and other information, lawyers should be aware of legislation such as H.R. 3261 and the issues it raises. You can track the bill’s status on Thomas at http://thomas.loc.gov.

Deborah Mack is a lawyer, information specialist, and owner of Mack Research and Writing, providing research and writing services for legal and business needs.

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Publications : Bar Bulletin: March, 2004

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