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ISSUE BRIEF: PROTECTING DATABASES July 1999 ACTION NEEDED:
Support the House Commerce Committee legislation, the Consumer and Investor Access to Information Act of 1999 (H.R. 1858).BACKGROUND: The current impetus for the development of a legal protection regime for databases stems from the removal of most copyright protection for factual databases by the Supreme Court's unanimous decision in Feist Publications, Inc. vs. Rural Telephone Service Co., 499 U.S. 340 (1991). The Feist Court ruled against the "sweat of the brow" doctrine, and found that only those elements of a database that have the requisite modicum of originality, such as arrangement and selection, currently are entitled to protection under copyright laws. AALL recognizes that the compilers of databases should be protected from misappropriation. However, any new database protection scheme should provide exemptions for users on a par with traditional copyright "fair use" provisions. Congress has attempted to pass database protection legislation since 1996. During the 105th Congress, Rep. Howard Coble (R-NC) introduced H.R. 2652, the Collections of Information Antipiracy Act which the House attempted to attach to last year's Digital Millennium Copyright Act (P.L. 105-304). However, it was pulled from the Act only a few days before passage by the Senate conferees, in part because the Senate had not considered the legislation and also because it lacked any "fair use" exceptions for database users. Earlier this year, Rep. Coble introduced the Collections of Information Antipiracy Act (H.R. 354) that is substantively similar to last year's legislation and proposes protection for a wide range of factual databases. The library and academic communities have opposed this legislation because it is overly restrictive of traditional scholarly communication; many of the definitions are overly broad; and database users, including the academic and library communities, can take only limited guidance from the "fair use" provisions. For example, under H.R. 354, nonprofit researchers may use parts of information collections but only so long as the act does not harm the "actual" market for the information. There is no precise definition of how this harm is to be accurately measured. In fact, it seems that the proposal would permit costly litigation against academics who would then be forced to raise this imprecise defense after the suit has begun. Equally troubling is that this new protection scheme would apply to databases of government information. AALL is firmly committed to ensuring that government information, created by taxpayer money for taxpayer use, should remain available in the public domain. On the other hand, Rep. Tom Bliley's legislation, the Consumer and Investor Access to Information Act of 1999 (H.R. 1858), presents a more balanced scheme for database protection. It does not overturn the Feist decision, thereby affirming a basic tenet of U.S. information policy that facts are in the public domain. At the same time, companies and individuals investing significant resources in database creation would be protected from misappropriation. H.R. 1858 also allows for transformative uses of data. Importantly, academic users and others would benefit from H.R. 1858's permissible uses, patterned after traditional copyright "fair use" provisions. Moreover, government information may be exempted from protection by statute or contract, thereby creating better public access to information. However, central to any discussion of a new database protection scheme is AALL's commitment to equal and equitable public access to primary legal materials created at all levels of government. More information about AALL's amendment is included in the accompanying AALL Issue Brief on The Rule of Law. CURRENT STATUS:
H.R. 1858 has been referred to the House Commerce Committee, and a Subcommittee hearing has been held.AALL CONTACTS:
Robert L. Oakley
Mary Alice Baish
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