U.S. database protection debate gets interesting

Information Outlook, May, 1999 by John Crosby

The more things change, the more they stay the same. Okay, so it's a cliche. But it's incredibly accurate, given the nature of the debate over legislation that would lower the threshold for protection of databases under United States law. Last year, the Collections of Information Anti-piracy Act failed to reach the floor of the House of Representatives, but it's supporters were assured that it would receive high priority during the 106th Congress.

And here we are, in the middle of the 106th Congress, and hearings have already been held on the reincarnated version of last year's legislation, which bears the same title but a different bill number (H.R. 354). Heck, by the time you've received this issue of Information Outlook, it's remotely possible that the bill could have already been passed by the House Judiciary Committee and moved to the full House for a vote. All of this Could happen without any significant amendments to the existing legislation. And that worries a lot of people, including Skip Lockwood, coordinator of the Digital Future Coalition and an organizer of a new coalition fighting for reasonable database protection. "Databases are items of commerce in their own right. They are critical tools for facilitating electronic commerce, research, and education endeavors," says Lockwood. "The producers of databases deserve sufficient protection against incentive-eliminating piracy, but we oppose legislation that would grant the compiler of any information an unprecedented fight to control transformative, value-added, downstream uses of the resulting collection or of any useful fraction of that collection. That is H.R. 354 in a nutshell."

That's why the major U.S. library associations, many universities, and companies like Amazon.com, Bell Atlantic, Dun & Bradstreet, Excite, Lycos, MCI WorldCom, U.S. West, and Yahoo! have signed onto a public statement calling for federal legislation that will not harm legitimate research activities and small businesses, but will:

* prevent unfair competition via parasitic copying

* preserve the fair use of information

* promote science, education, and research

* protect value-added publishers and their customers

* provide safeguards against monopolistic pricing

The 121 signatories to the statement, which includes SLA, believe that H.R. 354 would signal a major departure in longstanding U.S. policy on the treatment of collections of information. They view passage of the legislation as a reversal of the 1991 U.S. Supreme Court decision in Feist Publications v. Rural Telephone Service Co., 499 U.S. 340, in which the Supreme Court rejected the so-called 'sweat of the brow' theory as a basis for copyright protection for databases. Under Feist, the degree of labor and investment associated with producing a database is irrelevant to the question of whether it is copyrightable. Rather, a database may be protected by copyright only where it exhibits a minimum level of originality in the selection and arrangement of its contents.

So, it seems that all parties involved in the debate over H.R. 354 agree that something needs to be done. The question at hand is whether H.R. 354 itself is the answer. The database coalition has been working to find a sponsor in Congress who will introduce their proposal as legislation to be considered.

At the time of this writing, H.R. 354 has nine cosponsors: Howard Berman (CA), Barney Frank (MA), Mary Bono (CA), Bob Goodlatte (VA), Charles Canady (FL), Tony Hall (WV), Ronnie Shows (MS), William Delahunt (MA), and Robert Wexler (FL). Hearings on the bill were held on March 18, 1999, and you can view the testimony by visiting the House Judiciary Committee's web site at http://www.house.gov/judiciary/4.htm.> For more information on database protection, visit the Database Coalition's web site at www.databasecoalition.org, or contact SLA staff by calling 1-202-939-3629.