[Ecommerce] Database protection bill (is back?)

[Manon Ress]

FYI: at the last WIPO Standing committee meeting on copyright and
related rights (Nov. 03), the committee decided to put the discussion on
international database protection on the back burner...until the
situation in the US evolves.... again?
Manon

Thanks to JR for pointer:
http://writ.news.findlaw.com/student/20040211_karl.html

How the Current Congressional Database Protection Bill Would Go Beyond
Current Law,
and Why It is Unconstitutional and Misguided
By BRANDY KARL
<#bio>----
Wednesday, Feb. 11, 2004

Recently, a bill seeking to establish special legal protection for
databases was reported to the House floor for consideration. The bill,
HR 3261, is called the Database and Collections of Information
Misappropriation Act (DCIMA).

If enacted into law, the DCIMA would create civil liability for anyone
who, without authorization, makes available in commerce to others a
substantial part of the information contained in another person's
qualifying database. Qualifying databases must be "generated, gathered,
or maintained through a substantial expenditure of financial resources
or time."

Copyright law generally protects _original_ works of _creative_
expression -- so it protects only those databases whose selection, or
arrangement, is creative or original in some way. Merely compiling data
is not enough to earn copyright protection.

But this bill, if enacted, would alter this fundamental principle. Even
databases that are merely collections of facts would be protected. The
DCIMA would not extend protection to such databases because they
represent original, creative expression. Rather, it would protect them
because they come from the "sweat of the brow" (or, more realistically,
the sweat of the wallet) of their creator.

This theory inverts the whole idea underlying copyright protection. For
this reason, the DCIMA is unconstitutional. Moreover, from a policy
perspective, the DCIMA would also be disastrous.

*

Why Copyright Law Does Not Fully Protect All Databases

*

The current version of the Copyright Act protects "compilations" -- and
thus, in theory, could protect databases. But it defines a "compilation"
as a "work 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_." (Emphasis added.)

In 1991, in /Feist Publications, Inc. v. Rural Telephone Service Co./
<http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=499&invol=340>,
the Supreme Court was called upon to interpret this provision. There, a
local telephone company's name-and-number directory was copied by the
publisher of a name-and-number directory for a larger geographical area.
(Having been refused a license, the publisher simply took the
information, without permission or compensation.) The local telephone
company sued -- but it lost.

In ruling against the local phone company, the Court made clear that
plain effort does not constitute the originality required by the
Constitution's Copyright Clause. Rather, directories and databases must
exhibit "some minimal degree of creativity" in order to qualify for
copyright protection. Taking public domain information -- such as listed
telephone numbers and addresses -- and assembling it in alphabetical
order, the Court held, was hardly creative at all.

But what if the local directory _had_ qualified for copyright
protection? Would the publishers of the area-wide directory have
violated copyright when they took their information straight from the
local directory? Significantly, the Court said no. It explained that,
because copyright protects only expression -- _not ideas or facts_

-- others remain free to copy facts that are included in compilations or
databases, even if the resulting work results in a competing product.

A truly original arrangement or selection of facts would fall under the
copyright law, the Court noted. But the facts themselves never can.
Copyright encourages the free flow of information and advancement of
knowledge by encouraging, not limiting, the rights of the public to use
and build upon ideas and facts.

*

An Unconstitutional Attempt to Copyright Uncopyrightable Material

*

The DCIMA, as described above, takes an approach that is exactly
opposite to that of the Constitution's Copyright Clause. It seeks to
protect even those databases that lack any minimal degree of creativity
-- and it thus seeks to protect the facts within those databases, not
simply the way those facts are expressed.

In so doing, the DCIMA violates the Constitution. The Copyright Clause
made two choices: A choice to protect original expression, and a choice
not to protect facts or ideas. The DCIMA contradicts that second choice
-- and thus, it flouts the Constitution.

Put another way, the Framers drew a line between copyrightable and
uncopyrightable material. Yet the DCIMA would cross that line.

Proponents of the bill claim that, like trademarks, databases simply do
not fall under the Copyright Clause at all. They contend that they are
instead governed by the Commerce Clause -- as so many other products are.

But that is unconvincing. Remember, in /Feist/ the Supreme Court made
clear that _some_ aspects of _some_ databases _do_ fall under the
Copyright Clause: A database's original arrangement or selection of data
_can_ be copyrighted. Consequently, it is simply not the case that
databases have nothing to do with the Copyright Clause -- and fall under
the Commerce Clause instead.

Rather, it is the case that the Copyright Clause protects some aspects
of some databases, and leaves their other aspects -- their facts and
ideas -- out in the public domain. In this sense, it treats databases
exactly as it does all other writings. Databases do fall within the
Copyright Clause -- and that means that they must be protected to the
extent -- and only to the extent -- as other writings.

For all these reasons, the DCIMA is patently unconstitutional. In
addition, from a policy perspective, it is a mistake -- and the way it
is currently drafted only worsens that mistake.

*

The Problem with the Specific Provisions of DCIMA

*

Not only is the DCIMA misguided, it is also fatally vague, in several
respects.

First, the DCIMA imposes civil liability upon anyone who copies a
"quantitatively substantial" portion of a database - or a subset
thereof. But what's a "quantitatively substantial" portion? Can you copy
five percent of a database? Ten percent? Thirty percent? Aren't some
guidelines appropriate?

Second, the DCIMA carves out a "news reporting" exception -- but then it
carves out a vague exception to that exception. Specifically, it says
that the facts within a database would be allowed for the purposes of
news reporting, dissemination, and comment. But then it says that
liability could still apply if "the information is time sensitive and
has been gathered by a news reporting entity, and making available in
commerce the information is part of a consistent pattern engaged in for
the purpose of direct competition."

These terms lead to still more vagueness. First, when is information
"time sensitive" -- and when does the information stop being "time
sensitive"? Is it one hour after it becomes public? One day after? One
week after?

Consider this hypothetical: If one news site compiles a database of
information on the soldiers who were recent casualties in Iraq,
shouldn't everyone have free access to that directory as soon as
possible, in as many venues as possible? The facts about these soldiers
do not belong to the database compiler -- but the law would treat them
as if they did.

Second, must a "news reporting entity" be a major media entity? What
about a newsy blog -- or the Drudge Report?

Third, and finally, when does "direct competition" exist? Does a local
newspaper's site directly compete with the /New York Times/ with respect
to a local story the /Times/ was the first to break? Does the Drudge
Report directly or indirectly compete with the news sites to which it
links -- or does it not compete with them at all, but rather promote
them, and their content?

All these questions are left unanswered by the DCIMA. And all these
ambiguities will predictably hurt the dissemination of news -- including
facts that are of great importance for the public to know.

**

*Why the DCIMA Should Fail*

If Congress is wise, it will not enact the DCIMA into law. A free
society does not hoard its facts and ideas -- but that is just what
DCIMA protects and encourages.

If Congress is not wise, and goes forward with the DCIMA, the federal
courts will ultimately examine it to determine if the law runs afoul of
the Copyright Clause. They should hold that it does. Indeed, one could
hardly imagine a more frontal assault on the Clause's basic
distinctions, between idea and expression, and between creative
imagination and fact.

--
Manon Anne Ress
Consumer Project on Technology
www.cptech.org
PO Box 19367, Washington, DC 20036
manon.ress@cptech.org, voice: 1.202.387.8030, fax: 1.202.234.5176