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House Panel Sparks Database Controversy

The House Judiciary Committee approved controversial legislation Wednesday that extends protection for facts within databases which are not currently eligible for copyright protection.

Opponents to the bill claim it is special interest legislation that will ultimately make it more difficult and costly to access public information.

The Database and Collections of Information Misappropriation Act (H.R. 3261) allows database owners to sue in civil court for damages arising from the theft of the information in the database. The committee approved the bill on a 16-7 vote.

"Everyone knows our society is increasingly information driven and information dependent," bill sponsor Howard Coble (R-NC) said in a statement. "We rely on accurate, timely information to make many of the decisions we must reach in a day, an hour, or a minute, and increasingly, this information comes from electronic databases."

"Without the minimal protection afforded by this legislation, we run the risk that new databases will not be created and made available to the public, thereby depriving the public of one more information source."

Various versions of the legislation have kicked around Congress for the last eight years with opponents, which include the U.S. Chamber of Commerce, the National Academy of Sciences and college and university libraries, contending other laws on the books already provide remedies for database owners.

"This legislation is absolutely not necessary," Rep. Rick Boucher (D-VA) told internetnews.com. "There is a lack of need for this and huge opposition. It is mischievous in that it will lock away facts from public access."

Boucher, a member of both the House Judiciary Committee and the Energy and Commerce Committee, said he would work to divert the bill from floor consideration back to the Energy and Commerce Committee in hopes of either burying the legislation or improving it. There is no similar legislation in the Senate.

"It's clearly not needed," Boucher said. "There are other traditional remedies available such as copyright law and misappropriation laws."

Coble countered at Wednesday's hearing that he "remains convinced databases have value and deserve the right of protection." Coble said there are already so many compromises in the bill that is a "poster child of sorts" for the legislative process.

"After eight long years, we have finally reached a compromise on this very important piece of legislation which represents a balance where the interests of users and producers of databases are protected," Coble said. "H.R. 3261 goes to great lengths to create incentives for the development of new information products while making certain that libraries, archives and educational institutions are not adversely affected."

Coble says the bill allows a party to take a substantial part of any collection of information for private use, including scientific study or library research. According to Coble, it is only when use leads to material market harm that any liability might accrue.

Mark Erickson, director of federal policy for the public policy group NetCoalition, said the bill creates a new property right for database owners. His fear, he said, is that the legislation will "inevitably lead to the growing monopolization of the marketplace of ideas," where the ability to use facts is increasingly controlled by a small number of international publishing houses, such as Reed Elsevier, the Dutch-Anglo company that publishes Lexis-Nexis.

"The Supreme Court ruled in 1991 that facts can't be copyrighted," Erickson said. "All intellectual property has a finite life. Any sort of legislation that creates a new property right in facts can have a profound impact. It can drive up the cost of data and potentially give the owners of the new protection the ability to charge for using the facts in a downstream distribution."

Prior to 1991, courts were split over copyright protections for databases. Some found copyright protection if the compiler labored over his work, whether or not the work involved originality.

The theory was known as the "sweat of the brow" position. Other courts, however, hewed to the "creative selection" theory, which holds that an author show at least a minimum amount of originally for copyright protection.

In 1991, the Supreme Court agreed to hear a case involving two telephone directory companies. Rural Telephone Service Company alphabetically listed the names of its rural Kansas subscribers in its white pages and also tabulated the towns and the telephone numbers of those subscribers. Feist Publications published area-wide directories that listed numbers in broad geographic areas, reducing the need for directory assistance.

When Rural refused to license its white pages to Feist, the company proceeded to copy Rural's directory.

The Court ultimately ruled Feist had not infringed Rural's copyright because Rural's directory was not original work.

In its majority opinion, the Court wrote: "There is nothing remotely creative about arranging names alphabetically in a white pages directory. It is an age-old practice, firmly rooted in tradition and so commonplace that it has come to be expected as a matter of course. It is not only unoriginal, it is practically inevitable."

With the advent of electronic databases, particularly online compilations, database publishers have been fighting to gain copyright protections for their work despite the Supreme Court decision.

"This bill is testament to the power that one company can muster," Boucher said, referring to Reed Elsevier.