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.
