Re: Lawmakers to Weigh Database Protection Bill

[Samuel Trosow <strosow@uwo.ca>]

Joseph J. Esposito wrote:
> > It is another sheer grab of material that can't be copyrighted-Even
> > if we don't own it, we can make you use it the way we want?
> I don't think so.  Nothing would stop someone from independently coming up
> with the identical database.  
And how could they do that in the case of a sole-source database,
something that is increasingly common? And doesn't a requirement of
independent creation create a lot of needless duplication of effort, an
instance of social waste? You also have to consider the fact that
especially in the sciences, researchers use databases in interactive and
transformative ways. Prohibiting the extraction and reuse of database
contents would significantly impair the research process as it now exists.

> What would be prohibited would be copying the database that someone else 
> had aggregated.  This is not a copyright issue per se.
Eaxactly the point.  So why propose proprietary-type sui generis
legislation that looks, acts, feels, tastes and smells just like a
copyright-type measure? If additional statutory protection is really
needed (and I don't think the case for this has been made at all) then the
policy response should be a carefully crafted misappropriations measure
that is limited to competitors.  H.R. 1858 in the 106th Congress was an
example of such a measure and it was strongly opposed by the database
industry proponents of a stronger measure.  The proposed bill goes well
beyond imposing liability for the wholesale copying of a database in order
to enter into competition with the producer as it reaches the conduct of
end-users of databases as well as libraries and educational institutions.

> What it is is an attempt to codify the moral argument that
> the "sweat of the brow" counts for something.  
Actually, in the case of corporate producers it's more like the "sweat of
someone else's brow." This "sweat of the brow" argument (which is always
raised by database legislation proponents and which was rejected by the US
Supreme Court for copyright purposes in the Feist case) is really just a
very casual and inaccurate gloss of Lockean justification for property
rights.  While Locke’s theory of property would justify intellectual
property protection on the grounds that the intellectual labor supplied by
the author or inventor establishes a prima facie claim sufficient to
exclude others (His Second Treatise of Government, chapter 5, section 27
says "Whatsoever, then, he removes out of the state that Nature hath
provided and left it in, he hath mixed his labor with it and joined to it
something that is his own and thereby makes it his property. It being by
him removed from the common state Nature placed it in, it hath by this
labour something annexed to it that excludes the common right of other
men.") But Locke goes on to limit this entitlement by adding two provisos:
First, the act of appropriation must leave as much and as good for others;
and second, one must not take more than one can use.  The "sweat of the
brow' argument when applied to database ownership conveniently glosses
over Locke's two limiting provisos.

> People who are concerned about having access to public domain 
> information have nothing to fear from this legislation.
If that's the case, the legislation would have a very clear exclusion for
data obtained from the government (such as caselaw and legislation, the
very data that has prompted Reed Elsevier and Thompson to be so adamant in
their push for database legislation).  It would also clearly not apply to
data generated by government supported research. It would also clearly
protect libraries, educational institutions and researchers from potential
liability. People concerned about access have very good cause for concern.

Samuel Trosow
Assistant Professor
University of Western Ontario
Faculty of Information & Media Studies
Faculty of Law
http://publish.uwo.ca/~strosow/