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Tech Law Journal |
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| News, records, and analysis of legislation, litigation, and regulation affecting the computer, internet, communications and information technology sectors | |
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This page summarizes the following bills:
Introduction. Databases are accorded little protection under copyright law, as a result of the Supreme Court's decision in the Feist case. Businesses which produce compilations of data have lobbied for protection. Rep. Howard Coble (R-NC), the Chairman of the House Courts and Intellectual Property Subcommittee, has been trying to pass a bill for years. He sponsored HR 2652 in the 105th Congress (1997-1998); it ultimately passed the House, but not the Senate. He is sponsoring a very similar bill in the current Congress - HR 354.
More recently, Rep. Tom Bliley (R-VA) and Rep. John Dingell (D-MI), who are the Chairman and Ranking Minority Member of the House Commerce Committee, introduced a bill of their own - HR 1858. The protections for database owners in the Coble bill have been lessened several times since the first version. However, the Coble bill remains far more protective of database owners than the Bliley bill. Neither bill would create a copyright interest in databases. The Coble bill would give the owner of a pirated database a private cause of action against the thief in the nature of an unfair competition action. The Bliley bill would give owners no remedy, but would allow the FTC to bring civil actions under its authority over unfair and deceptive trade practices. HR 354, Collections of Information Antipiracy Act. Sponsors. Howard Coble (R-NC), Chairman of the Courts and Intellectual Property Subcommittee, Howard Berman (D-CA), Ranking Minority Member of the Subcommittee, Barney Frank (D-CA), Mary Bono (R-CA), Bob Goodlatte (R-VA), Charles Canady (R-FL), Tony Hall (D-OH), Ronnie Shows (D-MS), William Delahunt (D-MA), Robert Wexler (D-FL), Ellen Tauscher (D-CA), Chris Cannon (R-UT), John Sununu (R-NH), David Hobson (R-OH), Mark Foley (R-FL), Bruce Vento (D-MN), Bill Barrett (R-NE), Ed Pastor (D-AX), Bill Luther (D-MN), Ed Pease (R-IN), Deborah Pryce (R-OH), James Greenwood (R-PA), Wm. Coyne (D-PA), Doug Bereuter (R-NE), Asa Hutchinson (R-AR), Clay Shaw (R-FL).
Summary. The "Collections of Information Antipiracy Act" would offer increased legal protection to the builders of databases. Many database owners currently are unable to protect their databases from piracy under copyright or contract law remedies. The problem was created by the U.S. Supreme Court's rejection of the "sweat of the brow" basis for protecting compilations under copyright law in Feist Publications v. Rural Telephone Service Co., 449 U.S. 340 (1991). The bill is supported by businesses which create content (such as Reed-Elsevier, Thomson, and IBM). The bill is opposed by businesses (such as Yahoo!, Bloomberg and E-Trade) and academics who use and republish other people's database content, but do not want to pay for it. This bill creates new remedies. The intent of the bill is to encourage continued investment in the production and distribution of valuable new collections of information. This bill would increase the protections afforded to people who build or own databases. The bill does not apply to databases collected by non-educational government entities. Nor, does the bill apply to software, although, it does cover databases included in software. The bill gives significant judicial remedies to database owners. The key language of the bill states that "Any person who extracts, or uses in commerce, all or a substantial part, measured either quantitatively or qualitatively, of a collection of information gathered, organized, or maintained by another person through the investment of substantial monetary or other resources, so as to cause harm to the actual or potential market of that other person, or a successor in interest of that other person, for a product or service that incorporates that collection of information and is offered or intended to be offered for sale or otherwise in commerce by that other person, or a successor in interest of that person, shall be liable to that person ..." The bill is in the nature of intellectual property law. However, the protection afforded is different from that afforded under copyright law. The content need not be original, and harm must be suffered by the appropriation. It resembles unfair competition laws by allowing a remedy for harm committed by another. Status. HR 354 IH was introduced in the 106th Congress on January 19, 1999. The House Courts and Intellectual Property Subcommittee held a hearing on March 18, 1999. It reported the bill on May 20. The full Judiciary Committee reported the bill on May 26. This bill has a long history in the 105th Congress. The previous version, HR 2652, was approved by the House on May 19, 1998; however, the Senate never voted on this bill. Also, the language of this bill was included in the Manager's Report on the Digital Millennium Act (HR 2281), which was approved by the House by a voice vote on August 4. However, it was taken out of the Conference Report which passed the Senate on October 8 and the House on October 12. Legislative History with Links to Related Materials.
HR 1858, the Consumer and Investor Access to Information Act. Sponsor. Rep. Tom Bliley (R-VA). Cosponsors: John Dingell (D-MI), Billy Tauzin (R-LA), Ed Markey (D-MA), Mike Oxley (R-OH), Edolphus Towns (D-NY), John Kasich (R-OH), and Joe Barton (R-TX), Bill Clay (D-MO), Anna Eshoo (D-CA), Nathan Deal (R-GA), Bennie Thompson (D-MS), Roy Blunt (R-MO), Cliff Stearns (R-FL), Bob Etheridge (D-NC). Summary. HR 1858 is a bill designed to defeat passage of HR 354, rather than provide protection to database developers. It prohibits the duplication of databases only under certain very limited circumstances. And, except in the case of databases of real time market information developed by the stock exchanges, there is no way for the owners of pirated databases to enforce their rights. The basic prohibition in this bill states that:
However, the protection is only illusory. There are numerous exemptions and exceptions. Moreover, except in the narrow case of owners of real-time market information databases, there is no private right of action. It provides no protection where the developer does not sell or license the database (i.e., there is no protection for databases included in a publications supported by advertising revenues) or where the duplication does not threaten the opportunity to recover a return on investment. Nor does the prohibition apply when the duplicator's copy is not in competition with the owner's original. Also, the bill exempts duplication of databases in several types of activities, including news reporting, law enforcement and intelligence activities, and scientific, educational, or research activities. The bill also does not apply to "subscriber list information within the meaning of section 222(f) of the Communications Act of 1934." The bill also provides that it does not apply to databases "incorporating information collected or organized--(1) to perform the function of addressing, routing, forwarding, transmitting, or storing Internet communications; or (2) to perform the function of providing or receiving connections for Internet communications." An amendment adopted by the Telecom Subcommittee on July 29, 1999, added further exceptions. These include an exception for all kinds of "legal materials," and for databases that are not "large". Moreover, this bill is toothless. Enforcement is left to the Federal Trade Commission, which is a consumer protection agency, without expertise in intellectual property matters, and without substantial enforcement powers. Moreover, it would have authority only to initiate civil proceeding for unfair or deceptive acts under the Federal Trade Commission Act. Even in the case of violations by telecommunications common carriers, enforcement would lie with the FTC, not the FCC. The database developer or owner would not have the right to bring suit to enjoin violations or recover damages, or to seek any other remedy. The only exception would be for the processors of real-time market information databases. Status. HR 1858 was introduced on May 19, 1999, and referred to the Commerce Committee. It had hearings before both the Finance and Telecom Subcommittees. It was marked up by both subcommittees in late July. Legislative History with Links to Related Materials.
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