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Database Protection: The Basics
Copyright doctrine generally holds that facts cannot be protected by copyright law, but compilations of facts can receive such protection, no matter how much effort goes into compiling such facts. In 1991, the U.S. Supreme Court held unanimously that a publisher that published the listings of a telephone company's directory did not commit copyright infringement because the publisher created its book using unoriginal facts that could not receive copyright protection. Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991).
As part of its reasoning, the Court wrote that "the copyright in a factual compilation is thin. Notwithstanding a valid copyright, a subsequent compiler remains free to use the facts contained in another’s publication to aid in preparing a competing work, so long as the competing work does not feature the same selection and arrangement." Feist at 349.
Despite the Feist decision, a number of electronic database aggregators, publishers and real estate companies have been lobbying Congress to pass laws that would grant copyright protection to databases. Several proposed laws have been considered but not passed, most recently the Consumer Access to Information Act of 2004, HR 3872, 108th Cong. (2004). The House Committee on Energy and Commerce reported on and recommended the bill, but it never made it out of the House. Libraries generally oppose any attempts to grant copyright protection to databases or other factual collections because doing so would hurt the free flow of information, and restrict "fair uses" of such information.
In 1996, the European Union introduced its Database Directive, which provides databases with “sui generis” protection (protection independent of intellectual property theories such as copyright). In the United States, several pieces of legislation have been introduced in the United States to extend the protection of databases; to date, none has been enacted.
In December 2005, the European Commission issued a report critical of the Database Directive, and invited comments from stakeholders. On March 10, 2006, a group of organizations (including AALL) and law professors submitted comments urging the abandonment of “sui generis” database protection in Europe.
The following information will help AALL members understand the issues surrounding database protection and how they affect libraries and librarians.
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- Consumer Access to Information Act of 2004, HR 3872, 108th Cong. (2004): Would have classified “misappropriation” of a database as unfair competition, and give the FTC enforcement power. The House Committee on Energy and Commerce reported on and recommended the bill, but it never made it out of the House.
- Database and Collections of Information Misappropriation Act, HR 3261, 108th Cong (2003): Would have imposed civil liability for making available in commerce to others a substantial part of the information contained in a database generated, gathered, or maintained by another person without authorization. Energy and Commerce recommended against passage; Judiciary Committee recommended passage; 3/11/2004 Placed on the Union Calendar, Calendar No. 252, but went no further.
- Collections of Information Antipiracy Act, HR 354, 106th Cong. (1999): Would have imposed civil and some criminal liability on persons who harm a database owner’s market by extracting or using a substantial part of a collection of information gathered or maintained by another person through the investment of substantial resources. Committee on Judiciary recommended passage (as amended) but bill went no further on the House floor.
- Consumer and Investor Access to Information Act, HR 1858, 106th Cong. (1999): Would have proscribed the sale or distribution of databases to the public that: (1) is a duplicate of another database collected and organized by another person; and (2) is sold or distributed in commerce in competition with that other database. To be enforced by the Federal Trade Commission. Died on the floor after Commerce reported favorably and Judiciary “discharged.”
- Collections of Information Antipiracy Act, HR 2652, 105th Cong. (1998): Would have imposed civil and some criminal liability on persons who harm a database owner’s market by extracting or using a substantial part of a collection of information gathered or maintained by another person through the investment of substantial resources. Passed the House, but died in Senate Committee on the Judiciary.
- Database Investment and Intellectual Property Antipiracy Act of 1996 HR 3531, 104th Cong. (1996): Would have prohibited extracting, using, or reusing all or a substantial part of the contents of a database in a manner that conflicts with the owner's normal exploitation of the database. Died in House Committee on the Judiciary.