AALL Washington Affiars Office
ISSUE BRIEF:HOUSE DATABASE LEGISLATION
HOUSE DATABASE LEGISLATION SHOULD NOT RESTRICT
PUBLIC ACCESS TO THE RULE OF LAW
Support H.R. 1858, the Consumer and Investor Access to Information Act of 1999. This measure includes AALL's amendment that ensures open access to the rule of law by excluding federal, state and local primary legal materials from any new database regime:
104(f): LEGAL MATERIALS- Protection under this chapter shall not extend to a database of 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 publicly accessible electronic form without charge at the time a duplicate of such database was sold or distributed.
Oppose H.R. 354, the Collections of Information Antipiracy Act (H.R. 354).
The current impetus for the development of additional legal restrictions for databases stems from the removal of most copyright coverage 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 from competitors. However, any new database protection scheme should provide exemptions for users at least 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. In early 1999, Rep. Coble introduced the Collections of Information Antipiracy Act that is substantively similar to the legislation from the 105th Congress. Like its predecessor, H.R. 354 is overly restrictive of traditional scholarly communication and downstream transformative uses of data. The library, academic and research communities continue to oppose this legislation because it is overly broad and provides inadequate "fair-use" protections. 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, thereby permitting costly litigation against academics, practitioners and researchers who would then be forced to raise this imprecise and uncertain defense in the courts.
On the other hand, H.R. 1858 presents a more balanced proposal 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 without the chilling potential of infringement liability. Importantly, academic users and others would benefit from H.R. 1858's permissible uses, patterned after traditional copyright "fair use" provisions.
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. We are firmly committed to ensuring that government information, including primary legal materials, created by taxpayer dollars for taxpayer use should be available in the public domain. Public access to the rule of law must not be compromised by any new legislation extending copyright-like restrictions to collections of facts and data.
- H.R. 1858 was favorably reported out of the House Commerce Committee in August 1999. AALL seeks additional Congressional cosponsors for this bill.
H.R. 354 was favorably reported out of the House Judiciary Committee in May 1999. AALL asks the current co-sponsors of this bill to reconsider their position and support the Commerce Committee's less restrictive alternative, H.R. 1858, that will not restrict public access to the rule of law.
Mary Alice Baish
Associate Washington Affairs Representative