A newly proposed bill to protect database providers from “free-riding” by competitors may avoid the widespread criticism from the scientific community and other groups that stalled previous legislation, but could end up killing the database protection issue altogether, according to observers.
The bill, known as “The Consumer Access to Information Act of 2004,” or HR 3872, was introduced on March 2 by the House Energy and Commerce committee after the committee reported an “unfavorable recommendation” for a broader database protection bill proposed by the House Judiciary Committee last fall. That Judiciary bill, HR 3261, drew initial criticism from the intellectual property and scientific communities, who expressed concern that it would stifle the exchange of scientific information by providing open-ended copyright-like protection to facts [BioInform 10-13-03].
The newly proposed legislation “takes a more appropriate response to the concerns of database piracy” than the Judiciary bill did, according to Joe Rubin, a spokesman for the US Chamber of Commerce, which opposed the initial bill. Rubin said that while the Judiciary bill was “broadly prohibitive with a couple of exceptions,” the new legislation is more narrowly focused.
William Wulf, the president of the National Academy of Engineering, who last fall testified against the Judiciary bill on the grounds that it would have a “chilling effect on research,” praised the Energy and Commerce bill for being “short, sweet, and to the point.” Wulf noted that HR 3872 provides IP protection for those who have invested time and money in the creation of a database “in a way that beautifully exempts all non-profit-making uses of the databases and the information in them.”
Battle of the Bills
Supporters of the Judiciary bill, however, aren’t giving up without a fight. Keith Kupferschmid, intellectual property counsel for the Software & Information Industry Association and the Coalition Against Database Piracy, called the Energy and Commerce committee’s action “a slap in the face” and the product of “a jurisdictional battle” between the two House committees. According to Kupferschmid, the Judiciary bill that was introduced in the fall after three years of negotiation “was already a compromise” between the two committees, and it was expected to pass without a struggle. If database protection advocates — which include McGraw-Hill, Reed-Elsevier, Thomson Publishing, Derwent Information, and a number of other scientific publishers and information providers — had known that Energy and Commerce would introduce a competing bill at the eleventh hour, “we would have introduced our own dream bill at the time,” Kupferschmid said.
Kupferschmid highlighted several objections to the Energy and Commerce bill. One drawback, he said, is that new bill offers “no private right of action,” meaning a database provider that has been wronged cannot sue on its own accord, but must do so through the Federal Trade Commission. “The FTC has already said they have too much work as it is, and they wouldn’t do this, so that would be useless,” Kupferschmid said. In addition, he noted, the new bill would provide protection only for “time-sensitive” information, which is generally understood to be information that is valuable for between 15 minutes and 48 hours. According to Kupferschmid, many of the databases offered by CADP members “have a value that far exceeds 48 hours,” so the Energy and Commerce version of the bill would not provide adequate protection.
This issue of time sensitivity is the “biggest difference” between the two versions of the bill, according to Markham Erickson, director of federal policy and associate general counsel for NetCoalition, an advocacy group for Internet service providers that opposes the Judiciary bill. The debate around the time-sensitivity requirement “goes to the underlying flaw in what they want to do,” he said, “which is to create a new intellectual property right for facts.” Erickson explained that this property right would “go beyond even the copyright protections, since it would apply forever, in perpetuity” — a situation that he deemed “ridiculous.”
Erickson said that NetCoalition doesn’t see any need for new protections for database providers, but noted that if Congress were to enact legislation on the issue, “the Energy and Commerce committee approach is a much better approach than the Judiciary approach.”
It is still unclear what action Congress will take now that it is faced with two competing bills on essentially the same issue. “No one knows what will happen,” Erickson said. “That’s the million-dollar question.”
Kupferschmid said that it’s up to the House leadership and the chairmen of the two committees as to how to proceed, “and nobody’s rushing to decide what to do.” It’s still unclear, he said, whether either bill will come up on the House floor for a vote.
For many, it is still not clear whether such legislation is even necessary. NAE’s Wulf said he has been involved in discussions surrounding database legislation since 1996, and “in all this time, I have not seen a flagrant misappropriation of a database.” If current laws are adequate, he said, there may be more harm than good in adding new levels of protection. “We don’t want to run the risk of damaging the public good for a problem that we haven’t seen happen,” he said.
- Text of HR 3872, The Consumer Access to Information Act of 2004: http://frwebgate. access.gpo.gov/cgi-bin/getdoc. cgi?dbname=108_cong_bills&docid=f:h3872ih.txt.pdf
- Text of HR 3261, The Database and Collections of Information Misappropriation Act of 2003: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=108_cong_bills&docid=f:h3261ih.txt.pdf