Database legislation, part II.

Last month's Copyright Corner discussed the background of the movement in the United States to protect databases outside of copyright law. On the basis of several years of discussion in both the European Union and the United States, a database bill has again been introduced into Congress. The Database and Collections of Information Appropriate Act of 2003 was introduced on October 8, 2003, as H.R. 3261, and an amended version was favorably voted out of the intellectual property subcommittee.

The bill creates specific liability for the misappropriation of databases; collective works such as periodicals, anthologies, and encyclopedias; and compilations of preexisting materials. It defines a database as "a collection of a large number of discrete items of information produced for the purpose of bringing such discrete items of information together in one place or through one source so that persons may access them." The bill specifically excludes works of authorship, except for collective works, databases related to the routing of online digital communications or multichannel audio or video programs, and domain name registration contact data. It does not restrict anyone from independently developing or gathering information obtained by means other than extracting it from a database and making it available in commerce.

To qualify for protection, the database must have been "created through a substantial expenditure of financial resources or time." This appears to reinstate the "sweat of the brow" doctrine struck down in Feist v. Rural Telephone. (1)

The bill creates liability for anyone who makes available in commerce to others a quantitatively substantial part of the information in a database owned by someone else. Before liability attaches, however, the person must know that the activity is unauthorized by the owner of the database. Two other requirements must be met before liability attaches: (1) the information must have been made available at such a time that it causes harm to the database or to someone who is offering access to multiple databases, and (2) provision of database information must "so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened." To determine whether an unauthorized making available in commerce occurs in a time-sensitive manner, a court will "consider the temporal value of the information in the database, within the context of the industry sector involved."

The higher education community, which earlier opposed H.R. 3261, has withdrawn its objection to this new bill because of the exemption for nonprofit educational, scientific, and research institutions. These groups are allowed to make database information available if a court "determines that making available in commerce of the information in the database is reasonable under the circumstances, taking into consideration the customary practices associated with such uses of the database by nonprofit educational, scientific, or research institutions and other factors the court determines relevant." More important, accredited nonprofit postsecondary educational institutions, nonprofit research laboratories, and their employees acting with the scope of their employment are exempted from liability.

Two other important exemptions include hyperlinking to a database by websites and making information available in commerce for the primary purpose of news and sports reporting, unless such information is time sensitive and has been gathered by a news-reporting entity or if making the information available is part of a consistent pattern engaged in for purposes of direct competition with the database proprietor.

The bill contains a statement that it will not affect intellectual property rights or contracts. It provides a civil cause of action with injunctions, actual damages, attributable profits, impoundment and destruction of unauthorized copies of the database, punitive damages, and attorneys' fees.

While not perfect, for the library, research, and scholarly community this bill represents considerable improvement over earlier bills. For example, past bills would have allowed database owners to prevent individuals from using or extracting information from a database and appeared to give database producers control over uncopyrightable facts. The current bill is concerned with data misappropriation.

Proponents say that database piracy is a significant problem that must be corrected. The Coalition Against Database Piracy (CADP) represents 85 international and U.S.-based publishers and trade groups such as the American Intellectual Property Association, Software and Information Industry Association, and the Newsletter and Electronic Publishers Association. CADP believes database piracy is more of a threat to the Internet than is any proposed legislation to correct the problem. (2)

Groups that oppose the bill assert that there is no demonstrated need for such legislation. They state that existing federal copyright and antihacking laws, along with state contract and tort laws, provide ample protection for databases. The Database Coalition consists of a large number of groups ranging from the major online service providers (such as Verizon and Yahoo) to the American Civil Liberties Union, the Digital Future Coalition, the Electronic Frontier Foundation, the National Academy of Sciences, and major library associations. (3) Many fear that the legislation would increase the growing monopolization in the information marketplace.

The library community continues to oppose database legislation. A statement issued by the five major library associations in mid-October 2003 stated that the building blocks of research continue to be in the public domain and that H.R. 3261 threatens this tradition. Library associations support open access as opposed to database protection. Moreover, the bill would extend the monopoly that currently plagues research journals, the prices of which have increased by almost 200 percent since the mid-1980s. The associations believe that such legislation will erode libraries' ability to provide the materials that their users need. (4)

The amended bill is before the full House Judiciary Committee. Despite the many improvements in this version of the bill, database protection remains controversial.

(1) 499 U.S. 340 (1991).

(2) See Coalition Against Database Piracy, at http://www.cadp.net/.

(3) Letter to Representatives Sensenbrenner and Tauzin, October 21, 2003, at http://www.sla.org/ PDFs/SensenTauzin0903.pdf.

(4) Shared Legal Capability, "Library Community Opposes Bill to Restrict Access to Data," October 21, 2003, at http://www.arl.org/info/frn/ copy/pressrelease102003.pdf.