Database Protection Legislation: Copyright Caught between a Rock and a Hard Place

By Barker, Anne N. | Searcher, July-August 2005 | Go to article overview

Database Protection Legislation: Copyright Caught between a Rock and a Hard Place


Barker, Anne N., Searcher


Database protection legislation is one of those issues that seems to rear its head on a regular basis in spite of a tendency to die on the vine with corresponding regularity. Various legislative acts proposing some form of database protection legislation have been introduced in Congress in four of the last five congressional sessions. Although the most recent versions from the 108th Congress (Database and Collections of Information Misappropriation Act, H.R. 3261; Consumer Access to Information Act of 2004, H.R. 3872) failed to pass, the topic's status as a legislative priority ensures the likelihood of its reintroduction again in the future. In his position on the Senate Judiciary Committee, then-Chairman Senator Orrin Hatch included database protection legislation in his legislative agenda for both the 106th and, jointly with Ranking Democratic Member Senator Patrick Leahy, the 107th Congresses. While Hatch no longer chairs the committee, both he and Leahy remain committee members. A basic review of United States copyright law will detail why databases, as collections of information, are not covered by copyright protection and why database providers feel threatened. All database users and builders should stay on top of the most recent developments and look at the arguments on both sides of the debate.

United States Copyright Law

The foundation of U.S. copyright law is based on the clause in the Constitution that gives Congress the power to "promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries" (art. I, [section] 8, cl. 8). Primarily this copyright power was meant to encourage scientific and artistic advances that in turn benefit the public. However, copyright protection does not extend to facts or scientific principles themselves. A work must meet some degree of originality or creativity to be covered, and it is the expression of these ideas, not the facts, which are protected under copyright law. Facts are immutable, and therefore exist with or without an author or inventor. Facts cannot be created, only discovered, and it is for this reason that the facts belong to the public domain. As Blanke (2002) notes, "[s]ociety can benefit from such a public domain only if the information in it is freely accessible. The system rewards authors and inventors in order to provide an incentive for them to continue to create. But the reward comes with a price. After its term of protection expires, that creation becomes part of the public domain" (p. 650).

The Copyright Act of 1790, the first copyright law instituted under the new Constitution, granted copyright protection for 14 years with a renewal option of one additional term of 14 years. Changes to the law were made in 1802, 1831, 1856, 1865, and 1870, mainly to extend coverage to additional material formats, but also extending coverage of the first term from the original 14 years to 28 years. The Copyright Act of 1909 completely revised the law and extended the renewal term to 28 years, allowing a work to receive copyright protection totaling 56 years. The 1909 Act also allowed for the protection of "books, including composite and cyclopaedic works, directories, gazetteers, and other compilations" ([section]5 (a)). Although this act did not allow automatic copyright coverage to such compilations, without consideration of other criteria, misinterpretation of this section over the next several decades gave rise to the "sweat of the brow" doctrine, which enabled compilers of facts or ideas to seek copyright protection on the basis that they had expended the time and money to bring the information together.

In 1976, copyright law was again revised; the new act attempted to clarify the compilation language of 1909 by providing copyright protection for compilations in two ways. First, protection is provided to compilations "formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship" ([section] 101). …

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Database Protection Legislation: Copyright Caught between a Rock and a Hard Place
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