Copyright Protection For Databases   

Recent proposals to extend such property rights are misguided.

Copyright – the exclusive right to reproduce and distribute an original work – is protected by the U.S. Constitution, federal statutes and international treaties.

Copyright seems to contradict the free expression protections of the First Amendment because it limits the right to copy and to profit from someone else's creative efforts. But the drafters of the Constitution knew that if writers, inventors and other innovative people weren't guaranteed the right to reap financial rewards for their work, they wouldn't have much incentive to produce it in the first place. So they gave Congress the power to offer copyright protection, for the express purpose of promoting "the progress of science and the useful arts."

Copyright law evolved to include the important legal doctrine of "fair use" – the right to reproduce portions of a copyrighted work for news reporting, criticism or scholarship without first obtaining permission or paying a license or royalty fee.

In determining whether use is fair, courts consider "the amount and substantiality" of the parts extracted as well as how use of the copied material will affect the potential market for the original work.

Including a short extract from a play or a book in a review, for example, easily passes both tests, because it represents only a small part of the whole. Far from discouraging readers from seeing the play or buying the book, it may well whet their appetites for more.

But if a publisher photocopies an entire manuscript that's about to be released by his rival, planning to bring out his own version to compete with the authorized edition, that's not a fair use. It is copyright infringement.

Against this backdrop, Rural Telephone Service Company thought it was sure to win in 1991 when it asked the U.S. Supreme Court to rule that Feist Publications violated copyright laws by extracting Rural's "white pages" subscriber lists wholesale and incorporating them into Feist's competing directories.

But only "original" works – independently conceived and possessing some minimal degree of creativity, not simply copied from someone else – qualify for copyright protection. Facts, standing alone, can't be copyrighted.

The Supreme Court found that no matter how hard the telephone company worked to compile its white pages, there was nothing creative about them. As Justice Sandra Day O'Connor wrote, "copyright rewards originality, not effort."

The Feist decision didn't sit well with commercial information vendors, many of whom feared that their dreams of profiting from the sale of computerized databases would vanish into cyberspace, with new technology making it all too easy for competitors to appropriate information they had painstakingly compiled. They set out to persuade governments to recognize a novel property right in the contents of a database, based not on the traditional standards of originality and creativity but on a "substantial investment" in its collection and assembly.

In May 1996 the Clinton administration submitted a proposal to the World Intellectual Property Organization, which created a draft international treaty to be considered at a December 1996 summit in Geneva. The treaty would give database developers legal remedies against those who extract the facts contained in a database and then reuse them in a way that would interfere with the business interests of the developer. A similar measure was introduced in the House of Representatives. Neither contains a "fair use" exception.

These proposals strike at the heart of freedom of information principles. In theory, they don't restrict anyone from collecting and disseminating the identical facts as long as they come from another public source; in practice, this won't always be possible.

For example, state governments often grant private contractors exclusive rights to electronically compile and distribute public records such as land transactions, court opinions, tax liens and arrest logs. The records are available only to those willing to pay a hefty fee for the "value-added" version.

That's troublesome enough. But the Clinton proposals would also give vendors the right to control subsequent use of information gleaned from databases by requiring licenses or other contractual agreements as a prerequisite to access. To make sure that "ownership" sticks, the House bill would make it illegal to alter or remove "database management information" attached to the digitized information identifying the database owner.

As Justice O'Connor wrote, "Copyright is not a tool by which a compilation author may keep others from using the facts or data he or she has collected." Ironically, creating this unprecedented property right threatens to curtail dissemination of information just as it has become more accessible than ever before.

It's not what the drafters of the Constitution had in mind.