House Telecom Subcommittee Holds Hearing on Database Protection

(June 16, 1999) The House Telecommunications Subcommittee held a hearing on Tuesday morning, June 15, on HR 1858, and database protection generally. The House Judiciary Committee last month approved a competing bill, HR 354.

HR 1858, the Consumer and Investor Access to Information Act, is sponsored by Rep. Tom Bliley (R-VA), the Chairman of the House Commerce Committee. It is cosponsored by Rep. Billy Tauzin (R-LA), and most of the rest of the leadership of the Commerce Committee. The bill provides almost no protection to database owners. Most notably, it provides no private right of action, except in the narrow case of owners of real-time market information databases.

HR 354, the Collections of Information Antipiracy Act, is sponsored by Rep. Howard Coble (R-NC), the Chairman of the House Courts and Intellectual Property (CIP) Subcommittee. It passed the CIP Subcommittee, and then the full Judiciary Committee, by unanimous voice votes last month. It provides database developers an unfair trade practices remedy against people who pirate their databases.

Rep. Tom Bliley

Rep. Bliley spoke about his bill in his opening statement: "This hearing will address a bedrock issue: who will control information in the Information Age. On the one hand, we need to make sure that compilers of information have sufficient incentive to engage in their difficult but essential work. But at the same time, we need to make sure that we do not lock facts up . . . that we do not give anyone monopoly control over facts."

Rep. Tauzin, the Chairman of the Telecom Subcommittee, presided over the hearing. He spoke in favor of the Bliley bill. He cautioned in his opening statement that "we must take care not to over-protect databases." Later in the hearing he stated that the Coble bill is "copyrighting uncopyrightable material."

Rep. Mike Oxley (R-OH), who is Chairman of the Commerce Committee's Subcommittee on Finance, stated that his subcommittee would also hold a hearing on Title II of HR 1858. That part of the bill provides special remedies for the owners of databases of real time market information. This includes the right to bring civil lawsuits against database pirates. Rep. Oxley is a cosponsor of the bill.

Rep. Ed Markey (D-MA), the Ranking Minority Member of the Subcommittee, praised the Bliley bill. He said that is "attempts to strike an important balance between two goods." These are "protecting databases" and not "unwittingly stifle commerce, research and creativity."

The leadership of the House Commerce Committee from both parties is behind Rep. Bliley's bill. It is not just a matter of supporting the content of the bill. The Commerce Committee and the Judiciary Committee are competing for leadership on this issue in particular, and on a host of high-tech issues generally. The leadership is presenting a united front in this dispute over turf.

No members of the Telecom Committee stated opposition to the Bliley bill at the hearing. However, one member gave equivocal support. Rep. Rick Boucher (D-VA) sits on both the Telecom Subcommittee and the CIP Subcommittee. He is also one of the most knowledgeable Members of Congress on technical and legal issues involving telecommunications and the Internet. At the hearing he stated "I am very supportive of the approach that has been put forward by Chairman Bliley." However, he later stated "I really have some questions about whether we need to legislate in this area at all." He also suggested taking a wait and see position.

The Telecom Subcommittee also heard from a large panel of witnesses, most of whom spoke in support of Rep. Bliley's bill. However, Andrew Pincus, General Counsel of the Department of Commerce, testified that "we believe that a private right of action is necessary." The Bliley bill only provides for civil enforcement by the Federal Trade Commission. "We are very concerned that the Federal Trade Commission will not have the resources," Pincus added, "to deter the bad actors that are out there."

Eight of the eleven witnesses who testified support the Bliley bill. Of these, two were from telecommunications giants (AT&T and MCI WorldCom), two were from Internet companies, and two were from universities. All represented entities which are users of other people's databases.

The Subcommittee also heard from Phyllis Schlafly of the Eagle Forum, who not only praised the Bliley bill, but harshly criticized the Coble bill. Her contention was that the Coble bill would enable health care providers to prevent their patients from gaining access to their medical records. She has asserted this before, and Rep. Coble and CIP Subcommittee staff have denied the validity of her argument.

Henry Horbaczewski, of database producer Reed Elsevier, testified against the bill. He stated that "Title I of H.R. 1858 fails to provide any meaningful protection to database owners both at home and abroad. In short, the flaws contained in the bill's provisions would so disrupt current business practices that CADP and other U.S. database producers believe that no new law is better than enactment of Title I of H.R. 1858."

The members of the subcommittee who participated in all or part of the hearing included Tom Bliley (R-VA), Rick Boucher (D-VA), Roy Blunt (R-MO), Barbara Cubin (R-WY), Nathan Deal (R-GA), Gene Green (D-TX), Steve Largent (R-OK), Bill Luther (D-MN), Ed Markey (D-MA), Karen McCarthy (D-MO), Mike Oxley (R-OH), Tom Sawyer (D-OH), John Shimkus (R-IL), Clifford Stearns (R-FL), and Billy Tauzin (R-LA). Justin Lilley, the telecommunications counsel, sat at Rep. Tauzin's right throughout the hearing.