[Date Prev][Date Next][Thread Prev][Thread Next][Date Index][Thread Index]
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withdrawn until a complete and thorough national discussion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
internationally.
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.
Sincerely,
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