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library letter on database protection proposal

  				November 7, 1996
  Dr. John H. Gibbons
  Assistant to the President for Science and Technology and
  Director, Office of Science and Technology Policy
  Old Executive Office Building
  17th and Pennsylvania Avenue, N.W.
  Washington, D.C. 20500
  Dear Dr. Gibbons:
  	We are writing on behalf of the nations major library 
  associations to express our opposition to the draft "Treaty 
  on Intellectual Property in Respect of Databases," supported 
  by the U.S. delegation to the World Intellectual Property 
  Organization (WIPO) and to related efforts to advance the 
  adoption of such a proposal.  We share the concerns of the 
  Presidents of the National Academy of Sciences, the National 
  Academy of Engineering, and the Institute of Medicine 
  relating to both substantive and process issues regarding the 
  database proposal.  The changes to intellectual property law 
  which such a proposal would facilitate are so sweeping that 
  the U.S. delegation's support for the Draft Treaty should be 
  withdrawn until a complete and thorough national discussion 
  of the merits and/or drawbacks of any related intellectual 
  property proposal are carefully debated and considered.
  	There are a number of substantive concerns in addition 
  to those included in the Presidents' letter.  First, it is 
  well understood that access to data is the lifeblood of 
  science and research, indeed, to the advancement of 
  knowledge.  As a consequence, it is critically important to 
  understand the impacts of such a proposal on the U.S. 
  research and education communities.  Although many may view 
  the U.S. posture vis-a-vis international treaty negotiations 
  as a strictly legal issue,  this should be considered in the 
  context of what constitutes appropriate public policy in 
  support of all interests concerning access to information.
  	There is a long tradition in the United States of 
  protecting expression but not facts.  This tradition is based 
  on an appreciation that such a policy stimulates innovations 
  in the public and private sectors, supports the educational 
  process, and "promote[s] the progress of Science and the 
  Useful Arts."   The progress of knowledge is furthered by the 
  reuse of information in other works.  We believe that the 
  database proposal would undermine this tradition.  
  	Second, it is of great concern that the database 
  proposal is outside the scope of copyright and focuses only 
  on economic interests.  The current copyright framework 
  balances the interests of owners, creators, and users through 
  rights and limitations to those rights.  Such exemptions 
  include fair use, first sale, and related provisions.  The 
  Draft Treaty contains no such exemptions.  In fact, in recent 
  presentations, proponents of the database proposal have 
  stated that inclusion of such exemptions in domestic law 
  would jeopardize database protection by linking it to the 
  Copyright Act.  Thus the lack of inclusion of any exemptions 
  for libraries, research, and education in H.R. 3531, "The 
  Database Investment and Intellectual Property Antipiracy Act 
  of 1996," ( the domestic counterpart to the U.S. proposal to 
  WIPO) and recent statements by Information Industry 
  Association representatives supports an extremely bleak view 
  of how members of the academic and research community and the 
  public will access information resources in the future.  
  	It is important to note that there are provisions in the 
  Draft Treaty which would permit member nations to implement 
  national legislation which could include exceptions such as 
  fair use.  Yet neither the U.S. delegation's database 
  proposal to WIPO (May 1996) nor H.R. 3531 contained such 
  exceptions.  Thus the combination of the lack of inclusion of 
  these exceptions in the House bill and in the U.S. proposal, 
  with the statements noted previously by representatives of 
  the Information Industry Association, indicates that such 
  exceptions in implementing legislation would not be 
  supported, indeed would likely be opposed, by proponents of 
  the database proposal.
  	Finally, it appears as if U.S. policy is being driven by 
  concerns over the recently approved European Union Directive. 
  The European Union Directive was issued this past spring 
  following eight years of hearings, discussions, and debate in 
  Europe.  It is our understanding that no member countries of 
  the European Union have acted on the Directive.  In fact, in 
  a recent presentation, the Executive Director of the European 
  Association of Information Services noted that it is 
  considered unlikely that all European Union nations will 
  implement the Directive by 1998.  Thus the rush to support 
  such a proposal internationally when implementation has yet 
  to occur is both curious and confusing.  Would it not be wise 
  to wait and see what effects the database directive may have 
  on different communities once it is implemented in Europe?  
  Clearly time remains to engage in a consultative process to 
  explore the needs of all communities, nationally and 
  	The compromise that was achieved at the last Congress of 
  the World Meteorological Organization is instructive and 
  suggests a different approach to the U.S. position on the 
  database proposal.  The compromise in essence rolled back 
  European proposals for additional protections and resulted in 
  the agreement that certain categories of data will remain 
  open and unrestricted.  We suggest that the U.S. engage in 
  similar discussions with members of the European Union 
  regarding a new legal form of database protection.
  	As we have noted in earlier correspondence, it is 
  premature to engage in and conclude an international norm-
  making process regarding database protection prior to any 
  domestic discussion.  There were no opportunities to comment 
  upon the original U.S. proposal before it was formally 
  presented to WIPO in May.  In addition, there were no 
  hearings on H.R. 3531, and no companion bill was introduced 
  in the Senate.  An important consideration in formulating our 
  position is the lack of consultation with affected 
  constituencies in the public and private sectors regarding 
  the impact of such a proposal.  If such consultation had 
  occurred, there might be greater appreciation for the need 
  for such a new regime, what economic losses the information 
  industry has faced or anticipates in the future that requires 
  such a radical departure from current practice, and 
  clarification of the meaning of many provisions included in 
  the Draft Treaty and in H.R. 3531.  Such a process would also 
  identify and evaluate the impacts of this new form of legal 
  protection of databases on the ability of  libraries to 
  effectively serve their users.  For example, will the 
  creation of this new regime result in new licensing practices 
  and increased costs to libraries?
  	The Draft Treaty under consideration by members of WIPO 
  or other models to achieve protection of these resources 
  should only move forward following a full and thorough review 
  of the costs and benefits to all communities.  Such a review 
  has not occurred and it is not possible to  complete one 
  prior to the commencement of the WIPO treaty negotiations on 
  December 2, 1996.  As a consequence, we are deeply troubled 
  that the U.S. delegation continues to pursue the Draft Treaty 
  internationally prior to eliciting domestic comment and 
  potentially, consensus.
  	We would welcome the opportunity to meet with you to 
  discuss these concerns.  Please let us know if there is 
  additional information that we can provide.
  Duane E. Webster
  Executive Director
  Association of Research Libraries
  Carol C. Henderson
  Executive Director, Washington Office
  American Library Association
  Robert Oakley
  Washington Affairs Representative
  American Association of Law Libraries
  Carla Funk
  Executive Director
  Medical Library Association
  David Bender
  Executive Director
  Special Libraries Association
  cc:  Bruce Alberts, National Academy of Sciences
  Wm. A. Wulf, National Academy of Engineering
  Kenneth I. Shine, Institute of Medicine