Newly proposed legislation to provide greater legal protection for databases in the US is a “solution looking for a problem” that could ultimately stifle the exchange of scientific information, according to observers who spoke to BioInform last week.
“There are some concerns that are raised by the bill if it were to be enacted that could have a chilling effect,” said Mark Frankel, director of the Scientific Freedom, Responsibility, and Law Program at the American Association for the Advancement of Science. “Beside[s] the issue of whether there’s really a need [for it]… we still think this legislation is not quite ready for prime time.”
The bill in question is the latest incarnation of a database protection act that was first introduced in 1997 and has proved so controversial that it has yet to reach a vote in Congress. The new version of the bill would prevent second parties from making available a “quantitatively substantial part” of a database without authorization.
On Sept. 23, the House Judic- iary Committee and the House Energy and Commerce Committee held a joint hearing to debate the new version while it is still in draft form — a “commendable” action, Frankel said, that “acknowledges how sensitive this is for a variety of different communities.” The proposed legislation, dubbed “The Database and Collections of Information Misappropriation Act of 2003,” is an attempt to address the concerns that killed prior efforts, but critics say this strategy could impose unintended restrictions on the scientific process.
“They have tried to shift from a very strong exclusive property right to an unfair competition approach, but some concessions were made along the way that were very unwise,” said Jerome Reichman, a professor of law at Duke Law School who specializes in data intellectual property rights. “The bill is a step in the right direction, but it’s way overblown.”
Thomas Donohue, CEO and president of the US Chamber of Commerce, warned that the bill “threatens the academic and science communities and opens the door for another wave of litigation against American businesses.”
The bill is an attempt to balance the rights of database providers with the rights of those who use and redistribute the data, say supporters.
“Unlike prior bills that have addressed the problem of database piracy by providing database producers with exclusive rights to control the use and distribution of a database in any context, the draft legislation … is based on a misappropriation approach that only covers acts of making a database available that cause commercial harm to the database producer,” said Keith Kupferschmid, intellect- ual property counsel for the Software and Information Industry Association. Kupferschmid testified at the joint hearing on behalf of the Coalition Against Database Piracy, an advocacy group that supports the legislation and lists Celera Genomics, Reed-Elsevier, the Thomson Corporation, Derwent Information, and a number of other publishers and information providers among the “supporters of meaningful database antipiracy legislation” on its website. A spokesman for Celera said that while the company wants to ensure legal protection for its database, company IP officials were not aware of the new draft legislation.
Although the overall terms of protection in the proposed bill are moderate compared to previous versions of the legislation, critics say that the draft document contains a number of additional provisions that raise new concerns. Chief among these is a subpoena provision, modeled after the Digital Millennium Copyright Act, that would allow anyone — not only database providers — to seek information about a user alleged to have misappropriated data. A number of organizations have openly opposed this aspect of the draft bill, including the American Civil Liberties Union, the Association of American Universities, the American Association of Law Libraries, the Association of American Physicians and Surgeons, and NetCoalition, a public policy alliance for Internet companies.
Other concerns are of direct interest to the scientific community. Although the draft contains an exemption for non-profit educa-tional, scientific, or research institutions, as well as data generated by the government or an agent of the government, these exemptions require greater clarity, according to observers. The exemption for non-profit research, for example, “would discourage joint research and development activities between non-profit institutions and corporations,” according to William Wulf, president of the National Academy of Engineering, who testified at the hearing. And in the case of government-generated data, “If a federal research grantee that generates a database is not considered an ‘agent’ of the granting agency, the grantee could exercise proprietary control over the government-funded database,” according to the AALL.
Even commercial research could suffer if the bill were to pass as written, according to Reichman. “It could have enormous costs for R&D generally, for the economy generally. It’s going to create thickets of rights,” he said. One of Reichman’s concerns about the draft is its attempt to restrict liability to “time-sensitive matter “ — a term that it fails to define. “They give time sensitivity a potentially very broad and endless meaning,” Reichman said. “If I spend new money updating it or maintaining it, I can make that data time-sensitive even fifty years after the fact.” The ultimate effect of this is “scary,” he said: “If you think biotech is becoming difficult because of patented research tools, wait until everybody owns the data, as well as the research tools, in a highly protected database structure that lasts forever … You end up with a perpetual right in data that, though nominally unfair competition law, is stronger than copyright law. It starts out looking minimalist, but it ends up being very, very powerful.”
Considering the amount of controversy the draft has already stirred up, the fact that it is still in draft form, and the number of other priorities facing Congress right now, it’s unlikely that the legislation will move very far as it its currently written. “There’s really a question as to whether the bill is, number one, going to be introduced, and, number two, what form it will ultimately take when it is, and, number three, whether it’s going to go anywhere after it’s introduced,” said Frankel. However, he added, “If this bill is to have any kind of support from the scientific community, I would hope that after the hearing — if they’re going to do anything with it at all — that they’re going back to the drawing board to do some amending.”