of The American Society for Information Science

Vol. 26, No. 3

February/March 2000

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After the EU Directive: The Impact of European Database Protection on Stakeholder Groups

by Gail Hodge

Editor's note: We are particularly interested in the views of our European members on database protection and the impact of the EU directive. Please send your comments to ASIS-L or to Michel Menou by e-mail at  Michel.Menou@wanadoo.fr

In 1996, the European Union (EU) passed a directive that has been a major topic of information policy discussions since that time. The directive and subsequent U.S. draft legislation raise questions about the balance between intellectual property rights and the rights of society for access to and use of information. The EU Database Directive provides protection for databases, many of which would not otherwise be protected as copyrighted works. A directive is a guideline that must be implemented by individual legislation within the countries of the European Union.

ASIS, which includes the variety of stakeholders that make up the Information Community, has been involved in these database policy discussions for several years. In 1997, Tom Kahlil of the National Economic Council, challenged ASIS to discuss this issue in his plenary speech to the ASIS Annual Meeting. Subsequent panel discussions on this topic were held at the ASIS Mid-Year Meeting in Orlando and at the ASIS Annual Meeting in Pittsburgh in 1998. At those meetings, the panel members were asked to take specific positions in "debate" formats.

The third session in this series was held at this year's ASIS Annual Meeting in Washington, DC. This session focused on the actual and perceived impacts of the EU Database Directive and comparable U.S. legislation on the various stakeholder groups. This paper presents the highlights from that workshop and is based on the presentations and contributed input of the speakers. Dr. Shelly Warwick of Queens College, NY, who specializes in intellectual property and copyright, presented a tutorial on database protection and the issues surrounding it. A distinguished panel of stakeholder representatives – Dr. John Rumble (the international data community), Dr. Ferris Webster (specifically the meteorological data community), Dr. James Neal (academic and research libraries), Peter Weiss (U.S. government information policy) and Bonnie Lawlor (database producers and publishers) – discussed the impact of the directive on each particular stakeholder group. Due to transportation delays, Ms. Lawlor was unable to appear at the session, but she has provided her comments for this article.

The History of Database Protection

Dr. Warwick gave an overview of the history and issues surrounding database protection. Database protection provides protection beyond or in addition to copyright for collections, compilations, anthologies, etc. A variety of definitions have been offered for the term database. ("Fuzzy" definitions are one of the major problems with the directive and other database protection legislation.) As Dr. Warwick noted, "Even though we all think that we know what a database is, no one is really sure." Until there is case law established by the courts, it is impossible to determine what is and is not a database.

Why are we discussing database protection now? From the publisher's point of view, technology has made it much easier to copy an entire database. With a few keystrokes, terabytes of data can be downloaded, manipulated and redistributed. Secondly, there was an underlying assumption, at least in the United States, based on wording in the 1976 Copyright Law, that compilations were included under copyright. Many believed that even though it did not state that all were included, this was the case based on the "sweat of the brow," or having put significant effort, labor and funding into the creation of the database. However, in the landmark Feist case decided by the U.S. Supreme Court in 1991, the court stated that the "sweat of the brow" alone did not qualify a database for copyright protection. Originality is a constitutional requirement for protection under copyright. This meant that producers of factual databases that are arranged in relatively unoriginal ways, such as alphabetical, could no longer count on copyright as a means of protection. Ms. Lawlor notes that the case created a new copyright environment according to the Copyright Office, which stated that the "scope of protection for databases is 'thin' because it covers only the original elements of a compilation's selection, coordination and arrangement."  The Copyright Office also has stated that this "narrow scope of database protection has been reinforced by case law since 1991."

Since Feist, there have been a number of outside factors that have impacted the way that people have viewed database protection. The TRIPS (Trade-Related Aspects of Intellectual Property) Agreement in 1994, which was later incorporated into GATT, recognizes compilations as intellectual creations and requires protection. However, there is no mention of the nature of the protection that must be afforded.

In 1996, primarily at the impetus of the European Community, a database protection treaty based on the EU Directive was presented before the World Intellectual Property Organization (WIPO) Meeting in Geneva. Through the efforts of libraries and U.S. scientific organizations, the treaty never came to a vote. The United States and developing countries successfully argued that it had not been properly vetted among the various stakeholder groups. Developing countries are concerned that they will not be able to afford access to information that will help them compete with more developed nations. The status of the WIPO discussion is that an expert's meeting is to be held to gather additional input to the process.

Finally, in 1998, the European Database Protection Directive, passed in 1996, went into effect. To-date 9 of the 18 member states have passed national-level legislation. The others recently received a warning that they will be "reprimanded" if there is no legislation in place by the end of 1999. Dr. Neal questions if this delay is because of on-going debate or because of inertia. The EU Directive is up for review in 2001.

The Basic Tenets of the EU Directive

The EU Directive protects against substantial abstraction and copying. Again, as Dr. Warwick noted, database, substantial and extraction are very ill-defined. Is the normal use of a database an extraction? Concern exists within the library community that over the course of time a library could inadvertently, by each user downloading a few items, extract a "substantial" portion of the database.

The directive affords a 15-year term of protection. This term is renewable for additional 15-year terms if modifications or updates are made to the database. This can result in a possible regime of perpetual protection. The term of protection is a key issue in U.S. discussions, since this could ultimately provide longer protection than even the extended 70-year copyright term approved by the U.S. Congress in 1999.

The EU Directive provides protection only for EU countries and for other countries with similar, "reciprocal" legislation. It isn't clear precisely what constitutes "similar." Concerns have been raised that this restriction could be used to shut off protection to any country with slight differences from the EU version. This tenet in particular has caused concern among producers headquartered in the United States that their databases will not be protected from piracy in EU countries.

U.S. Database Legislation

The concern over non-reciprocity is a reason cited by proponents of U.S. database protection for harmonizing U.S. law with the EU Directive. For three years, database protection bills have been introduced in Congress. However, no bills have been brought to the floor, though there have been extensive hearings in the House and Senate.

At the end of the current session of Congress, two bills were in House committees. H.R. 354, The Collections of Information Antipiracy Act, is supported by the major database producers such as the American Realtors Association and Reed-Elsevier. H.R. 1858, The Consumer and Investor Access to Information Act, is supported by the library community.

There are major differences between the two bills. H.R. 354 begins by defining extremely broad prohibitions and then carves out specific exemptions. It provides protection from all substantial copying of databases, whether for commercial or non-commercial purposes. There is no exemption for fair use. H.R. 1858 on the other hand is a very narrow bill. It specifically targets the "parasitical copying of commercial databases." It prohibits full duplication of a database for the purpose of direct competition in the marketplace and bars non-commercial distribution of large quantities of extracted data. It permits transformative, downstream uses of data. It has strong fair use provisions and prohibits database owners from refusing to license.

Dr. Neal stated that if H.R. 354 is approved it would fundamentally change the research and education enterprise and increase costs. H.R. 1858 is preferred because it tackles the problems of transformative and downstream data. Ms. Lawlor indicates that H.R. 1858 does not provide adequate protection for database producers and limits their rights as owners to control the distribution of their property.

Fair Use

In discussions of the EU Directive, WIPO treaty drafts and U.S. bills, fair use has been a point of major debate. Fair use exemptions in the copyright law allow copyrighted material to be used for personal, educational, research and journalistic purposes.  Neither the draft WIPO treaty nor the EU Directive includes specific wording concerning fair use. In the case of the EU Directive, this point was specifically left up to the individual countries to decide. As Mr. Weiss noted, the harmonization that spurred the directive in the first place is unlikely to occur. Those nine countries of the EU that have already passed national-level legislation do not match in how they handle fair use. For example, France does not allow any use for any purpose. It puts sole rights in the hands of the data owners.

Contradictions in the European Viewpoint

The Europeans have not been consistent in their approach to database protection. In a Council Directive dating from 1990, the EU stated that Member States must ensure that public authorities are required to make information concerning the environment available at a cost not exceeding a reasonable cost for distribution. This legislation is still in effect, and in some cases contradicts the EU Directive. Similarly, the 12th Congress of the World Meteorological Organization (WMO) passed Resolution 40 in 1995, which states that the research and education communities should have free and unrestricted access to the data of the WMO members for their educational and research activities. This wording was also used in Resolution 25 regarding the exchange of hydrological data and products at the 1999 WMO Congress.

However, Mr. Weiss pointed out that the countries are allowed to designate "additional data" that may be excluded from this open and unrestricted policy. However, "additional data" is not well defined. Dr. Webster indicated that Resolution 40 sent a "big chill" through the scientific community. There are less data available now than before. Many scientists are withholding data sets, because they don't understand the resolutions and think it is safer to withhold the data than to provide it. Again, this uneasiness can be attributed to a lack of understandable definitions. As Mr. Weiss notes, Resolution 40 "gives lip service to the tradition of open sharing [on the one hand] … but it totally undermines it on the other."

As recently as January 1999, the EU Directorate General XIII (DG-XIII) issued a Green Paper, Public Sector Information: A Key Resource for Europe. The views expressed in the paper are compatible with the philosophy behind U.S. government information policy and begin to express the opinion that open and unrestricted access to public information is necessary in order to promote a commercial information industry within the EU member countries. However, Mr. Weiss reported that the Green Paper is not taken seriously in many circles.

The Impact of the EU Directive

Given the fact that the EU Directive has been in place for several years and that there have been various versions of U.S. legislation, what has been the impact on the various stakeholders? Has the impact been negative, positive or is it too soon to tell?

The Impact on the Scientific Enterprise: Dr. Rumble said that database protection is the complete antithesis of the way that science has worked in the past and needs to work in the future. The science of the present and the future is built on the discoveries of the past. Scientists not only need facts with which to make future discoveries, but they need to have the liberty to present their facts and have them available in an open forum for validation and critique by their peers.

In addition to the issues between database protection and traditional scientific communication, there is also a fundamental change in the way science is being done. "The shift in paradigm of research is that databases and what they represent, which is the cumulation of large amounts of quantitative knowledge that is directly comparable and exploitable, are now becoming a new source of scientific information." More and more the raw materials for science are not experiments conducted in the laboratory but data manipulation and extraction. This is most prevalent in molecular biology, but is increasingly the modus operandi for other sciences. Dr. Rumble believes that the majority of new scientific discoveries in the future will be done this way. The free and open exchange of data will be more important than ever.

Dr. Webster remarked that the proponents for database protection say that a moderate amount of data can be taken for research purposes, as long as the information is not sold or transferred to anyone else. However, it is very hard to keep track of downstream modifications and uses of the data, when it is in the nature of science to use, transform and re-disseminate the data. This inability to track presents liability problems for scientists.

While there is beginning to be anecdotal evidence that the EU Directive is having a negative impact on the exchange of scientific information, Dr. Webster indicated that the issues of database protection are not well known among European scientists. When he questions his European colleagues about the impact, they are unaware of the directive.

The Impact on the Library Community: According to Dr. Neal, at this time there is no clear evidence of an impact on the library community. However, the anticipated impact is one of increased cost for information and increased restrictions and bureaucracy related to provision of that information to library patrons.

First, the library community is not convinced that the flourishing commercial database industry needs protection. It questions whether harmonization with the European Directive is needed or wanted since the intellectual property traditions are so diverse. There are concerns that the legislation threatens the constitutional balance between the rights of the owners and the privileges of the public in a democracy. Libraries are concerned that the legislation would benefit only a small number of companies while providing no benefit to libraries and the public. Specific impacts on the library community include increased cost for information and liability for misappropriation, including downstream or transformative uses. Does one lost sale trigger liability? Even though the option exists to collect and organize the data independently, this is often impossible or economically unfeasible. It is important to safeguard against monopolistic practices. Dr. Neal stated that databases already have substantial protection under copyright, contract law, common law in many states that prohibits misappropriation, and in some cases, trademark protection. There are also technological protections that can be put into place. Along with the UCITA (the click-on and shrink wrap legislation now moving through the 50 states), database legislation could result in a very different business-based environment for the future.

The Impact on the Publishing Community: Ms. Lawlor, representing the publishing community, acknowledges that there has been no direct, identifiable impact to date based on the passage of the Database Directive. Simply because no damage can be identified does not mean that protection is not necessary.

The most immediate impact of the EU Directive, and other international activities such as the proposed WIPO treaty, has been a "heightened interest in U.S. copyright legislation," particularly within the U.S. publishing community. The publishing community has tried, albeit unsuccessfully, to include database protection wording in the copyright law. Following the catalyst of the Feist case, it is particularly important to the publishing community that the change be made to the copyright law rather than through a "misappropriation" bill. The current copyright law was written in 1976, within the context of a completely different technological background, and publishers believe that the law needs to be updated to reflect the environment in which their data is being accessed and used.  Ms. Lawlor voices the opinion of the publishing community that the "framework within which a civilized Society operates and flourishes is provided by law. For the Information Society that framework is Copyright Law - a law that must reflect the current environment within which the Information Society operates."

Since the Feist case, publishers have relied primarily on licensing, technology and refusal to license data as the three methods for protecting databases. Opponents of database protection have cited these mechanisms as sufficient protection, which justifies why no change in the law is necessary. However, these measures are themselves impacted by copyright law.  Proponents have requested that these measures for protection be overruled with regard to the use of copyrighted material in distance education environments. Licenses are seen as too time consuming to negotiate. Technology is seen as unduly inhibitive. Others have stated that publishers should not have the right to refuse to provide their data. As Ms. Lawlor states, "On the one hand the law should not be changed to protect databases because the current measures work, but on the other hand publishers should not be allowed to use such measures in one of their primary markets."

While the Digital Millennium Copyright Act (DMCA), which was passed in 1998, addresses some of these issues, Ms. Lawlor notes that this bill is not a database protection bill. The wording regarding databases was specifically removed from this bill in order to reach a compromise. In addition, even databases that would qualify for copyright protection may be subject to copying. The DMCA allows for copying of material for distance learning purposes. This allows the possibility of copying within the library market, which is the largest market for many academic publishers.

Ms. Lawlor indicates that there are significant concerns within the community because of the reciprocity clause in the EU Directive. The concern is that without reciprocal legislation in the United States, the products of U.S. publishers will not be protected in the EU and piracy will occur. According to Ms. Lawlor many publishers "have a substantial European revenue stream, and there exists the potential for significant economic harm. To date that harm has not materialized, not because the harm is a figment of Publishers' imaginations, but because of the slowness of the member states to implement the Directive within their own laws."

The Impact on Public Access to Government Information: The debate on domestic federal information policy began in 1985. It was solidified in 1990 with the policy of open and unrestricted access to government information with costs limited to the cost of dissemination with no real exceptions. This is known as the Freedom of Information Act. Through this act and others that followed, such as the Paperwork Reduction Act of 1995 and OMB Circular A-130, the U.S. has taken a consistent approach that the taxpayers paid for the research to be done or the data to be collected, and therefore, they own it. Just as the U.S. government cannot retain copyright, there should be no protection for government produced databases. This information should be available, open and unrestricted to all, even for commercial purposes.

Mr. Weiss argues that this information policy is a "source of economic growth and jobs." Dr. Rumble believes that "…over the last 20 years the United States has made a re-dedication to view science and technological research and development as an engine to jump-start the American economy." In areas such as information technology, biotechnology and advanced manufacturing technology, there has been a joint investment between the government and private sector. These economic advantages may be jeopardized by an overly restrictive database protection policy.

Since 1995, there has been a "great tension" between the open and unrestricted information policy of the U.S. government and the increasingly restrictive policy of the European countries. As global science and technology increase our need for global communication and exchange, partnerships may be severely impacted by these differences.

To date there has been no direct impact on U.S. government information policy and practice. However, Mr. Weiss cautions that we should not "take the U.S. federal information policy of open and unrestricted access for granted. It is conceivable that we may be forced by international political and economic forces to abandon that policy." The pressure behind this change is likely to be harmonization with Europe or a WIPO treaty.

He questions whether the EU would consider legislation in the United States that does not restrict access to government information to be similar enough to grant reciprocity. Is it possible that this would force the United States, under pressure from the private sector, to change its approach to government information policy?

Constitutionality of Database Protection

Of course a key issue with regard to information policy in the United States is the degree to which the law is constitutional. Is database protection legislation really constitutional? Database protection opponents have been saying for some time that this legislation is an "end run" around copyright. Mr. Weiss has discussed this issue with lawyers at the Department of Justice.

The intellectual property clause of the constitution stands separate, including Copyright and Patent, both of which are intended to be limited in term. The intention is to protect and promote the creativity of writers and inventors, while providing for communication of information to promote the progress of science and technology for the common good. Fair use is also believed in some legal circles to be constitutionally mandated under the First Amendment. Limit, creativity and fair use are key constitutional concepts with regard to copyright. Intellectual property rights and the First Amendment are in a delicate balance, and database protection may create an imbalance. Mr. Weiss raised the question, "Can the Commerce Clause [upon which H.R. 1858 is based] be used to 'trump' both the First Amendment and Copyright?"

The Future of Database Protection

The future of database protection isn't clear. The directive is up for review in 2001, and to-date only half of the EU countries have adopted national legislation in line with the directive. Both Mr. Weiss and Dr. Webster indicated that there might be some softening of the European position. In a meeting of the International Publishers' Council in mid-October, the head of the council indicated that the directive should be modified to give more liberal use of data for education and science.

The future of database legislation in the United States is also uncertain. Even though no legislation came to a vote in 1999, a database protection bill is likely to be reintroduced when Congress reconvenes in January 2000. The time between now and January will be critical. The time may be spent trying to seek a compromise between the two House bills. If that is successful, the Senate may decide to simply adopt the House bill rather than draft its own. The bill could come to the floor very quickly. Both the library and publishing communities will be actively promoting their positions.

The major impact of the EU Directive has been to increase the discussion in the United States and elsewhere regarding the copyright and protection of databases and other electronic products. To date, the major impact has been to create hesitancy in some communities regarding the sharing of global scientific data. There are numerous and contradictory anticipated impacts within the stakeholder communities. Little is known about the actual impacts on these groups. The impact is likely to remain speculative at best until the Directive is up for review in 2001.

However, all participants in the panel agreed that in this time of uncertainty, it is important for the ASIS community, which represents the major stakeholder groups, to understand database protection issues and to participate in the debate. Perhaps Ms. Lawlor states it best when she says,  "Database protection represents a challenge to [ASIS] – the challenge of balancing the needs of all members of the information community. We are not there yet, but when I see more than 10 people at a session discussing copyright, I know that we are a lot closer than we were in 1991!"

Dr. Shelly Warwick is assistant professor at the Graduate School of Information and Library Studies, Queens College, where she specializes in copyright and intellectual property. The impact of the Feist decision on database protection was the topic for her doctoral dissertation. Email: shelley_warwick@qc.edu

Dr. John Rumble is chief of the Standard Reference Data Program at the National Institute of Standards and Technology. In 1998, Dr. Rumble was elected president of the Committee on Data (CODATA) of the International Council for Science.

Peter Weiss has been a senior policy analyst/attorney in the Office of Information and Regulatory Affairs, Office of Management and Budget since 1991. In his position, he analyzes policy and legal issues involving information resources and information technology management, with particular emphasis on Electronic Data Interchange and electronic commerce.

Dr. James Neal is dean of University Libraries and Sheridan Director of the Milton S. Eisenhower Library at Johns Hopkins University. He represented the American library community as an advisor to the U.S. delegation at the WIPO diplomatic conference on copyright. He is a member of IFLA's Committee on Copyright and Other Legal Matters.

Dr. Ferris Webster is professor of oceanography in the College of Marine Studies of the University of Delaware. Since 1994, he has served as chair of the Panel on World Data Centers of the International Council for Science. He is also chair of its Group on Data and Information.

Bonnie Lawlor is president and CEO of Chescot Publishing, a consulting firm specializing in electronic publishing. She has held positions with UMI and ISI involving the migration of products from print to electronic media. She currently chairs the NFAIS Information Policy Committee. Email: chescot@aol.com

Gail Hodge is Senior Project Manager for Information International Associates, Inc. Among her activities she supports CENDI, an interagency working group of federal scientific and technical information managers. She is the Chair of ASIS's Information Policy SIG and a member of the NFAIS Information Policy Committee. Email: gailhodge@aol.com

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