House Subcommittee Holds Hearing on Database Protection Bill

(March 19, 1999) The House Courts and Intellectual Property Subcommittee held a hearing on HR 354, the Collections of Information Antipiracy Act, on Thursday, March 18. A similar bill passed the House, but not the Senate, in the 105th Congress.

HR 354 IH was introduced by Rep. Howard Coble (R-NC) in January of 1999. However, a very similar bill, HR 2652 (105th Congress) was twice passed in the House last year. However, it was not passed by the Senate. Rep. Coble submitted a statement for the Congressional Record on January 19 in which he said, "I look forward to working with Senator Orrin Hatch and Senator Patrick Leahy, who have indicated this necessary legislation will be a priority for them this legislative session." Rep. Coble is Chairman of the House Judiciary Committee's Subcommittee on Courts and Intellectual Property, which has jurisdiction over this bill. Sen. Orrin Hatch (R-UT) is Chairman of the Senate Judiciary Committee.

Rep. Coble described HR 354, and the changes from last year's bill, in his opening statement.

"The balance provides adequate protection to ensure there is an incentive for companies to invest in the development of collections of information, without inhibiting members of the scientific, library, and research communities from carrying on their work. This bill, as a complement to the copyright law, relies on unfair competition principles to prevent a party from misappropriating another's collection of information in the event a person misappropriates a substantial portion of another's collection of information to the extent it will harm the original collector's ability to compete, the misappropriator would be subject to injunction and damages.

This bill is nearly identical to the legislation which passed the House of Representatives not once, but twice, last year. HR 354 differs from last year's legislation in two ways. First, it clarifies that the term of protection for a collection of information is limited to 15 years. Second, the bill adopts "fair use" like language to clarify the permissible uses for scientific, educational and research purposes."

Rep. Howard Coble (R-NC)

Rep. Coble is sponsoring this legislation in part because of the Supreme Court's rejection of the "sweat of the brow" basis for protecting database compilations under copyright law. (See, Feist Publications v. Rural Telephone Service Co., 449 U.S. 340 (1991).) Also, databases published on the Internet are now particularly easy for free riders to quickly and cheaply pirate.

No members of the subcommittee expressed opposition to the bill. Many suggested that changes in the bill should be made.

Rep. Howard Berman (D-CA) who has replaced Rep. Barney Frank (D-MA) as ranking minority member of the Subcommittee, stated "I support the legislation because I don't like the idea that simply because databases cannot be copyrighted, creators of databases should live without assurance that, as a general mater, they will be compensated for their efforts." However, "that is not to say that I do not have some questions," added Rep. Berman. But, there should "no right to free ride just because there is a gap in the law." Rep. Berman also stated that "there is widespread agreement in Congress that this issue deserves our prompt attention."

Rep. Zoe Lofgren (D-CA) (web site | bio)  said that "I have a number of issues that need to be sorted through by this committee," but concluded that "I agree that we want a bill this year." During questioning of witnesses Rep. Lofgren asked about the constitutionality of the bill, and the impact that it would have on the Internet.

Rep. William Delahunt (D-MA) stated that the bill "is important to the American people," but "there are some issues that need to be addressed."

The subcommittee heard from two witnesses from the executive branch, Marybeth Peters, the Registrar of Copyrights, U.S. Copyright Office, Library of Congress, and Andrew Pincus, the General Counsel of the U.S. Department of Justice. Both testified in favor of the bill, but made suggestions for changes.

Peters stated that the reason for the bill is "the need to preserve adequate incentives for the production and dissemination of databases, which are increasingly important to the U.S. economy and culture, both as a component in the development of electronic commerce and as a tool for facilitating scientific, educational and technological advancement."

Andrew Pincus, the General Counsel for the Department of Commerce, testified that "there is a gap in the law that must be filled by new legislation. We support the enactment of the statute to protect database creators against free riding, the wrongful taking and distribution of database material, which results in infliction of commercial harm on the database producer."

During a discussion with Rep. Lofgren regarding the likely impact of HR 354 on the Internet, Pincus stated that it "will encourage the availability of more information." He added that "having a clear protections that really work that were available to people who have this investment, who are considering whether to invest money in creating new information products, if you will, is the best way to encourage this new transmission medium."

The Subcommittee also heard from a large panel of witnesses representing groups with an interest in the subject matter of the legislation. Three witnesses were from academia, which has long been one of the main centers of opposition to the bill. These three were Charles Phelps, Provost of the University of Rochester, James Neal, Dean of University Libraries at Johns Hopkins University, and Joshua Lederberg, professor at Rockefeller University.

The Subcommittee also heard from proponents of the bill. The American Intellectual Property Law Association and the Software and Information Industry Alliance both sent representatives who testified in favor of the bill. Similarly, Marilyn Minokur, testified in favor of the bill on behalf of small database producers. Finally, Lynn Henderson, of Doane Agricultural Services, testified regarding piracy of her company's databases. Doane publishes agricultural information for farmers and others.

Rep. Delahunt asked Andrew Pincus a question about use of encryption in this arena. Pincus, who works for an administration opposed to legislation guaranteeing encryption rights, responded that "we try to avoid as much as possible" answering those questions.

The members of the Subcommittee who participated in all or part of the hearing included Chairman Howard Coble (R-NC), Ranking Minority Member Howard Berman (D-CA), Mary Bono (R-CA), William Delahunt (D-MA), Bob Goodlatte (R-VA), William Jenkins (R-TN), Zoe Lofgren (D-CA), Edward Pease (R-IN), James Rogan (R-CA), and James Sensenbrenner (R-WI).