Maryland
Bar Bulletin
Publications :
Bar Bulletin
Editor: W.
Patrick Tandy
March, 2004
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Database
Protection Bill Creates Controversy
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By
Deborah Mack
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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.
