HOUSE LEGISLATION TO PROTECT DATABASES
Support the House Commerce Committee legislation, the Consumer and Investor Access to Information Act of 1999 (H.R. 1858).
Oppose the House Judiciary Committee legislation, the Collections of Information Antipiracy Act (H.R. 354).
Sponsor AALL's amendment excluding federal, state and local primary legal materials from any new database regime:
Protection under this chapter shall not extend to primary legal materials, including court opinions, statutes, codes, regulations, or administrative agency decisions, from any Federal, state, or local jurisdiction, unless such materials were permanently available on an interactive computer network, without restriction, in an official, no-fee, publicly accessible electronic form at the time that the extraction occurred.
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.
H.R. 1858 has been referred to the House Commerce Committee, and a Subcommittee hearing has been held.
H.R. 354 was favorably reported out of the House Judiciary Committee in May.
AALL seeks Congressional sponsors for an amendment excluding primary legal materials from any database protection legislation.
No Senate bill yet.
Robert L. Oakley
Washington Affairs Representative
Mary Alice Baish
Associate Washington Affairs Representative