In March, Rep. Billy Tauzin (R- LA) and Rep. James Sensenbrenner (R - WI) told the Tech Law Journal that they are “committed to getting a database protection bill ... passed by Congress this year.” — an odd statement considering Congress’s failure to pass such legislation in 1999 and 2000.
According to intellectual property attorney Stephen Maurer, the renewed demand to provide IP protection for databases didn’t arise from the US database industry, but in response to a 1996 directive issued by the European Community that threatened to withhold protection from American firms unless the US adopted a similar policy. Maurer argues in a recent Science article that database protection of this kind would pose a number of risks to the scientific community, particularly the biotechnology sector.
In the article, Maurer and his co-authors examine the consequences of the EC directive, concluding that its drawbacks far outweigh its benefits.
First of all, according to Maurer, the directive effectively eroded the use of public domain data, a particularly thorny issue in biology, where researchers combine data from dozens of academic and commercial sources. “Under these circum-stances,” Maurer wrote, “discovery could soon be limited to the pace at which lawyers write contracts.”
The case of Swiss-Prot is an example of the potential hazards of such legislation. The database changed its policy in 1998 to require commercial users to pay a license fee, eventually causing the NCBI to severely limit its use of the data.
When they changed their policy, “We just took whole thing off our site,” Jim Ostell, chief of the information engineering branch at NCBI told BioInform. “They originally wanted us to monitor who was using our site and if a commercial group used a Swiss-Prot record they wanted us to send them the information so they could approach that company to pay for it.”
Eventually the two data providers worked out a compromise. Genbank carries a copyright notice on its Swiss-Prot records, which are no longer available for bulk redistribution or in derivative products through Genbank. In addition, Ostell said, NCBI developed RefSeq and other alternative resources to provide Swiss-Prot-like data to its users in an unrestricted manner.
But Swiss-Prot ultimately lost out in the process, according to Ostell. “Science is based on communication and comparison,” he said. “If you can''''t communicate and you can''''t compare, then whatever it is that got restricted is going to tend to not be included in that process.”
Maurer told BioInform that another potential hazard stems from the fact that much database litigation witnessed so far in Europe has resulted in the overprotection of arguably worthless data such as telephone numbers and broadcast schedules. “The implication of these frankly silly cases,” Maurer said, “is that down the line scientific publishers would acquire rights to one-of-a-kind data that everyone needs.”
Maurer noted that there is very little evidence that database protection is needed. Indeed, US database providers already rely on contracts, download restrictions, and frequent updates to discourage copying.
While admitting that “this is the ultimate piece of boring technical legislation,” Maurer warned that if the scientific community remains unaware of Congress’s intent, “You’ll wake up one morning not understanding why everything changed overnight.”