nettime: copyright on facts

[Pit Schultz <pit {AT} contrib.de>]

[apologies for double postings, here's a subjective note:
as you may know the copyright law of Bern is one of the few laws which are
almost ruling globaly, to observe and participate the process of decision
making in this case, especially in an own practise, which can reach from
warez to shareware, from potlatch to communitarian net-economies, the
copyright
question will define the ability of a 'knowledge' economy under 
development to solve global problems like gaining control over pollution 
and the financial market. 
Property determines privacy as well as there cannot be privacy without a
public domain. By destroying the public sphere, privacy becomes an obsolete
term. A brazilianization of cyberspace, with firewalls around the info-rich
infranets, and a titty-tainment Web-TV for the masses, together with a 
darwinist natualisation of abstract global competition, gives place to
retro-national ethnical conflicts also called balkanization.  
if you find other textes along these questions please pass it to the list.
please also feel free to comment such textes.  -pit]


http://www.essential.org/cpt/ip/cpt-dbcom.html


  A PRIMER ON THE PROPOSED WIPO TREATY ON
  DATABASE EXTRACTION RIGHTS
  THAT WILL BE CONSIDERED IN DECEMBER 1996*
  
   
   October 29, 1996
   Revised November 10, 1996
   
   James Love
   Consumer Project on Technology
   http://www.essential.org/cpt
   email: love {AT} tap.org 
   
   
   *This is my first take on the treaty, and I would appreciate comments
   and corrections. This is a very important matter that hasn't received
   much attention. jl
   
  INTRODUCTION
  
   
   
   The World Intellectual Property Organization (WIPO) will consider in
   December 1996 a new treaty that would require most countries
   (including the United States) to severely curtail the public's rights
   to use pubic domain materials stored in "databases." Some experts say
   it is the "least balanced and most potentially anti- competitive
   intellectual property rights ever created." The U.S. Patent and
   Trademark Office (PTO) is accepting public comments on this treaty,
   and a digital copyright treaty that is also troubling. Comments are
   due by November 22, 1996, and can be submitted by electronic mail to:
   diploconf {AT} uspto.gov . Copies of the treaty, commentary, and the PTO
   federal register notice is available from
   http://www.public-domain.org. This memorandum provides background
   information on the treaty and the problems it presents.
   
  BACKGROUND
  
   
   
   The database treaty is being pushed by large publishing companies, in
   response to the 1991 U.S. Supreme Court decision in Feist
   Publications, Inc. v. Rural Telephone Service . In Feist , the Court
   rejected a claim of copyright for data from a telephone directory's
   white pages, saying that facts cannot be copyrighted, and that obvious
   items such as listing names, addresses, and telephone numbers in
   alphabetical order, are not sufficiently creative to qualify for
   copyright protection. The decision rejected the "sweat of the brow"
   theory of copyright.
   
   Compilations of data or documents, including materials from the public
   domain, can receive protection under copyright if the creator of the
   compilation can show originality in the selection and arrangement of
   the data. Comprehensive databases, which can be expensive to create,
   confront problems under copyright laws because (almost by definition)
   they are not original in terms of the selection of the materials.
   
   Electronic database publishers have sought to protect their data
   through contracts with their customers. These contracts often place
   restrictive conditions on the reuse or redissemination of the data.
   See Pam Samuelson, "Legally Speaking: Legal Protection For Database
   Contents," 39 Communications of the ACM (Nov. 1996), for a discussion
   about this approach. In other cases, database vendors permit online
   searching, but do not distribute the complete database itself.
   
   Publishers are looking for stronger protection, and are lobbying hard
   to obtain a new "sui generis" (this is Latin for "one of a kind," and
   is a term used to describe statutory protections which are not defined
   under patent, copyright or trademark laws) property right to protect
   the contents of databases. The publishers' first success was the
   adoption of a controversial proposal for database extraction rights in
   the European Union (EU), and by gaining the support of the Clinton
   Administration and the EU to propose a very similar measure as an
   amendment to the Berne Copyright Convention. Legislation to implement
   this form of data use regulation was introduced in the 104th Congress
   [HR 3531], but there were no hearings on the measure. [On November 6,
   1996 we were told by the White House that the Clinton Administration
   did not support the language of HR 3531.]
   
   Despite the controversial and far reaching nature of the database
   protection proposal and the lack of discussion on its impact in the
   United States, the Clinton Administration is asking for quick approval
   of the database treaty at a December 1996 meeting in Geneva hosted by
   the World Intellectual Property Organization (WIPO). The main
   Administration advocate in support of the publishers' position is
   Bruce Lehman, Chair of the Patent and Trademark Office (PTO), a person
   widely considered an intellectual property rights zealot.
   
  THE COMPLEXITIES (AND DANGERS) IN CREATING A NEW PROPERTY RIGHT FOR DATA
  
   
   
   While many persons are sympathetic to the general idea of a sui
   generis form of protection for databases, there is enormous concern
   about the complexities of creating a new property right that has the
   potential to create private monopolies on data and documents that have
   traditionally been in the public domain. It is often said that "the
   devil is in the details," and this is certainly true for the database
   protection proposal. A handful of database vendors have quietly
   crafted a proposed treaty and law that creates a nightmare for
   researchers and value added publishers. In discussing the development
   of the EU database proposal, J. H. Reichman and Pamela Samuelson say
   that "lobbying pressures converted the final version into one of the
   least balanced and most potentially anti-competitive intellectual
   property rights ever created." [ "Intellectual Property Rights In
   Data: An Assault On The Worldwide Public Interest In Research And
   Development , forthcoming in Vanderbilt Law Review, 50 ].
   
   The database vendors have sought to vastly expand the ability of
   database owners to regulate and restrict the public's rights to use
   data, without the types of safeguards which exist in copyright law
   today. In this respect, it is important to understand that as a "sui
   generis" property right, the database extraction rights are not part
   of the of the copyright regime, and the entire doctrine of fair use of
   data will not apply to data protected under the proposed database
   extraction rights treaty and legislation. Moreover, under the WIPO
   proposal these new data rights would be retroactive, affecting
   countless databases already in existence.
   
  DIGRESSION ON WEST PUBLISHING AND THE DEFINITION OF A DATABASE
  
   
   
   The Feist decision was particularly troubling for West Publishing, a
   company that wants to maintain its monopoly on the citations and
   corrected text for many court decisions. (See:
   [http://essential.org/cpt/legalinfo/legalinfo.html ) West is the
   only comprehensive publisher of federal circuit and district court
   opinions and state court opinions from all 50 states. The page numbers
   of the West court reporters are the basis for authoritative citations
   used by scholars and lawyers. As a reporter of decisions, West also
   makes corrections to the text of court opinions, typically after
   working with the judge who wrote the opinion. West wants to prevent
   others from using their page numbers or the corrected text of court
   opinions, and it is often in court trying to prevent its would be
   competitors from doing so.
   
   West is now involved in at least two law suits over its assertions of
   copyright of the page numbers, and one law suit over the issue of the
   copyright to the text of the corrected court opinions. [See
   http://www.hyperlaw.com for background on this]. Most copyright
   experts think that West will lose its court case on the issue of its
   page numbers, and West will also be hard pressed to claim it can
   copyright the corrections to the text of court opinions --
   particularly for the US federal courts, since U.S. copyright laws
   exclude the works of federal employees.
   
   Most people think that the corrected text of court opinions, and the
   citations to those opinions, should be in the public domain, and that
   the West monopoly has delayed the development of new information
   products and services for legal researchers. No one seriously argues
   that the court opinions would not be published without a West
   monopoly. West is among the private sector publishers who have
   successfully lobbied the EU and the Clinton Administration to extend
   the database protection proposals to print products by defining a
   database so broadly that it will include any collection of facts,
   data, or documents regardless of the media. If the database protection
   proposals are enacted, West will have a firm monopoly on decades of
   judicial citations and corrections to judicial opinions.
   
  THE DATABASE EXTRACTION RIGHTS PROPOSAL
  
   
   
   The August 30, 1996 version of the WIPO treaty is available on the Web
   at http://www.loc.gov/copyright/wipo6.html, and it is worth reading
   since it represents the most radical change in intellectual property
   rights in data, ever.
   
  WHAT IS A DATABASE? WHAT ISN'T A DATABASE?
  
   
   
   The treaty would protect "any database that represents a substantial
   investment in the collection, assembly, verification, organization or
   presentation of the contents of the database." This term should be
   understood "to include collections of literary, musical or audiovisual
   works or any other kind of works, or collections of other materials
   such as texts, sounds, images, numbers, facts, or data representing
   any other matter or substance" and "may contain collections of
   expressions of folklore." The "protection shall be granted to
   databases irrespective of the form or medium in which they are
   embodied. Protection extends to databases in both electronic and
   non-electronic form" and "embraces all forms or media now known or
   later developed. . . Protection shall be granted to databases
   regardless of whether they are made available to the public. This
   means that databases that are made generally available to the public,
   commercially or otherwise, as well as databases that remain within the
   exclusive possession and control of their developers enjoy protection
   on the same footing."
   
   In other words, a lot of water will go under this bridge.
   
  WHAT ARE EXTRACTION AND UTILIZATION RIGHTS?
  
   
   
   "The maker of a database eligible for protection under this Treaty
   shall have the right to authorize or prohibit the extraction or
   utilization of its contents." What is "extraction"? Extraction is
   defined as, "the permanent or temporary transfer of all or a
   substantial part of the contents of a database to another medium by
   any means or in any form." "Extraction . . . is a synonym for
   `copying' or `reproduction' . . . by `any means' or `any form' that is
   now known or later developed."
   
   "Utilization" is defined as "making available to the public all or a
   substantial part of the contents of a database by any means, including
   by the distribution of copies, by renting, or by on-line or other
   forms of transmission," including the right to control the use of the
   data "at a time individually chosen by each member of the public."
   
  WHAT IS A "SUBSTANTIAL PART" OF THE DATABASE?
  
   
   
   The treaty sets out tests for determining if an extraction is
   "substantial," and these tests are both highly anticompetitive, and
   extremely broad in scope.
   
   The "substantiality" of a portion of the database is assessed against
   the "value of the database," and considers "qualitative and
   quantitative aspects," noting that "neither aspect is more important
   than the other. . . This assessment may also take into account the
   diminution in market value that may result from the use of the
   portion, including the added risk that the investment in the database
   will not be recoverable. It may even include an assessment of whether
   a new product using the portion could serve as a commercial substitute
   for the original, diminishing the market for the original."
   
   Then the treaty adds that a "substantial part" means any portion of
   the database, "including an accumulation of small portions . . . In
   practice, repeated or systematic use of small portions of the contents
   of a database may have the same effect as extraction or utilization of
   a large, or substantial, part of the contents of the database."
   
   In the US implementing legislation, the only types of data use that
   would not be regulated would be "insubstantial" parts, "whose
   extraction, use or reuse does not diminish the value of the database,
   conflict with a normal exploitation of the database or adversely
   affect the actual or potential market for the database." Under this
   language, a database owner could say that it might in the future want
   to charge for each transmission of a fact or an element of a database
   as part of its "normal exploitation" of the database. With the
   Internet and digital cash this claim is likely to be made. The public
   would not have "fair use" rights, since fair use is only defined in
   matters involving copyright.
   
  FOR HOW LONG? 15 YEARS, 25 YEARS, OR FOREVER?
  
   
   
   The Treaty would require a minimum term of protection (15 years in the
   EU proposal, and 25 in the United States proposal) for the database.
   But this is extended each time the database is revised or enhanced.
   According to the draft treaty, "any substantial change to the
   database, evaluated qualitatively or quantitatively, including any
   substantial change resulting from the accumulation of successive
   additions, deletions, verifications, modifications in organization or
   presentation, or other alterations, which constitute a new substantial
   investment, shall qualify the database resulting from such investment
   for its own term of protection."
   
   The provision on revisions raises the specter that protection for many
   databases will be perpetual. This could indeed be the case if the
   original versions of the database are only "licensed" by the vendor
   for a limited period of time, so that the only available versions
   would be the new ones, which would have a new term of protection.
   [Database vendors write these restricted use licenses now].
   
  WHO WILL "OWN" FACTS?
  
   
   
   The supporters of the Treaty note that persons can independently
   collect data for a rival database, and the US legislation says
   "nothing in this Act shall in any way restrict any person from