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December 2, 2003

House Considers Database Bill

Bringing to the forefront an issue which has been percolating within the technology world, Rep. Howard Coble (R-NC) introduced the Database and Collections of Information Misappropriation Act (H.R. 3261) on October 8. The bill has five cosponsors, including House Judiciary Committee Chairman F. James Sensenbrenner Jr. (R-WI) and House Energy and Commerce Committee Chairman W.J. "Billy" Tauzin (R-LA), who have been working on a compromise for months. The legislation seeks to make illegal the unauthorized utilization of a database, or as the proposed text defines it, "a collection of a large number of discrete items of information."

The advent of the Information Age has caused commercial database producers to seek new legislative protections for their intellectual property. Proponents say it is needed to protect the significant investments in time and money involved in creating databases, as well as to spur economic growth by promoting the creation of new databases. Their concerns derive from the ease with which a company or individual can pirate electronic materials from a commercial database, such as EBay, and make them commercially available as its own product.

Opponents, however, argue that the electronic format of these works is already protected under other enacted laws, such as the Computer Fraud and Abuse Act (18 U.S.C. §1030), and that the enactment of the bill might endanger public service activities such as price comparison websites or lists of political candidates' voting records.

Past versions of database legislation sought to clarify the amount of information from a particular database that could be legally used outside of the database and what remedies would be available if that amount is surpassed. The new compromise bill attempts a "clarification" of technological terms but is in the eyes of many opponents potentially damaging. For example, the bill describes that amount by labeling it "quantitatively substantial," a term which is not defined within the act and, thus, subject to a wide-range of interpretations.

Many in the research community rely on databases to share scientific information and have long followed the "fair use" principle that factual information should be publicly available. For example, research projects on climate change and the human genome have used publicly accessible databases to facilitate large-scale collaborations by far-flung scientists. Hence, the scientific and library communities have expressed concern about any new database protection legislation.

H.R. 3261, however, includes a provision that would protect nonprofit educational, scientific or research institutions from litigation should they make available in the stream of commerce certain portions of a database. However, these exemptions require a court to first hear a claim against a party to determine if the sharing is "reasonable under the circumstances, taking into consideration the customary practices associated with such uses of such database[s] by non-profit educational, scientific or research institutions and other factors that the court determines relevant."

Opponents express concern that such ambiguous language could be used to create delays as courts determine whether research projects fall under the exemption. Similarly they argue that the legislation fails to clarify the fate of government databases which are owned or co-created with other entities such as universities, and that these works may fall under the government exemption but may ultimately be open to recapture under other sections of the act.

Database protection legislation was first introduced back in the 104th Congress, and proposals have been floated in each Congress since. In the 107th, no bills were formally introduced, but much action took place behind the scenes, leading to the current effort. At an October 16 markup, the House Judiciary Committee's Subcommittee on Courts, the Internet and Intellectual Property approved the bill by a 10-4 vote.

—Lincoln G. Harris, AAAS Science and Intellectual Property in the Public Interest (SIPPI) Project