If at First You Don't Succeed, Stop!: Proposed Legislation to Set Up New Intellectual Property Right in Facts Themselves

Article excerpt

Here they go again.

First of all, I want to thank those of you who made calls, wrote, or faxed letters to your elected representatives and then called all your friends and urged them to action. So far, the efforts to protect facts from commercialization have been largely successful, and--surprise!--somehow database producers have managed to survive!

Keep up the good work--because the next volley has arrived.

The House now has before it H.R. 3261, the "Database and Collections of Information Misappropriation Act," introduced by representatives Howard Coble (R-NC), Jim Sensenbrenner, Jr. (R-WI and chairman of the Committee on the Judiciary),W. J. "Billy" Tauzin (R-LA and chairman of the Committee on Energy and Commerce), Lamar Smith (R-TX), David Hobson (R-OH), and Jim Greenwood (R-PA).

The disparate organizations lining up to fight H.R. 3261 are an impressive group. In a letter signed by the Consumers Union, the Electronic Frontier Foundation, the Electronic Privacy Information Center, the Media Access Project, and Public Knowledge, the authors pointed out, "[O]ur leaders and policymakers should strive to make it easier and less costly--not more difficult and more costly--for citizens to have access to public information. This should be the goal even when that information has been assembled or reassembled by a small number of commercial enterprises." (1)

The letter pointed out:

   [W]e live in a nation in which
   any individual can become educated,
   drawing upon publicly
   available information, to fulfill
   his or her fullest potential as a
   participant in democracy. The
   barriers to achieving that goal
   should be minimal. Information
   that falls outside the already-established
   categories of
   intellectual property is a shared
   resource, a public good, and one
   that is enriched rather than
   diminished by policies that
   increase rather than decrease
   everyone's access to it. This approach
   to information, and its
   importance to the opportunities
   inherent in democracy, informed
   citizenship, and self-education,
   stand in fundamental opposition
   to proposals like [H.R.
   3261] ... that create new intellectual
   property schemes to lock
   information up and ensure that
   every individual pays a toll for
   every fact he or she learns. [Emphasis
   added.]

The Association of Research Libraries, in a legislative update on database legislation, pointed out, a "key concern" of library and other organizations in a newAd Hoc Database coalition "is the fact that the legislation would create protection not only for databases, but for the facts contained therein. [Emphases added.]

Such protection would be at odds with the U.S. Supreme Court's assertion in Feist Publications v. Rural Telephone Service Co. (1991) (2) and in Dastar v. Twentieth Century Fox (2003) (3) that copyright protection does not extend to facts." (See http://www.arl.org/info/ frn/leg-update.html.)

Major Issues for Libraries and Other Information Providers

Will performing interlibrary loans, preservation projects, circulating material, and/or creating bibliographies, or providing access to commercial and/or Internet databases violate the terms of H.R. 3261? There is no guidance as to what libraries, schools, research, and educational institutions can and cannot do with databases. The vagueness of the text and the lack of definitions of terms used in the bill could lead to expensive lawsuits to gain judicial interpretations and limits on liability.

For instance, if a reference librarian provides access for a library patron to a variety of databases at a library workstation, and the patron copies information relevant to his or her needs to a floppy disk, is the library going to escape the net of a lawsuit if the patron then loads the contents of the floppy disk onto the Internet? Would it make a difference if the library was a university library and the patron either a student or a member of the local community? …