Re: Lawmakers to Weigh Database Protection Bill

[Samuel Trosow <strosow@uwo.ca>]

Joseph J. Esposito wrote:
> ----- Original Message ----- 
> From: "Diane Cabell" <dcabell@law.harvard.edu>
> Sent: Tuesday, September 09, 2003 3:52 PM
>
> > I strongly disagree that people have nothing to fear from this
> > legislation.  If you create an alphabetical list of residences, and I
> > create the same list independently, you are still going to make a claim
> > against me under your sweat right.
> JE:  Absolutely not.  The alphabetical list is not copyrighted.
ST: Diane's point is not about liability under copyright.  it's about 
liability under a new sui generis database law. Her assessment of 
potential liability here is accurate.

> > All you have to do is file a complaint, the burden will be on me to show 
> > that I didn't copy it from you (to prove a negative which is not an easy 
> > task).  Most folks can't afford criminal justice, much less pay for a 
> > sophisticated copyright defense.
> JE:  Litigation is a burden all around.  I have been on both sides
> numerous times.
ST: But it's much more of a burden for the user who is not armed with well
staffed legal departments just chomping at the bit to go after alleged
infringers to make a point (as we're currently seeing in the copyright
arena with the RIIA latest volley of litigation against individual users
including children)  Bottom line is that when you unduly expand liability,
as you would under database legislation, it will have a serious chilling
effect on legitimate uses.

> > The sweater is, after all, stealing other work himself. He is
> > nothing more than a plagiarist.
> JE:  Not so.  Ever try to assemble a simple directory?
ST: I think her point is that the alleged sweater is not applying
creativity or originality, just reproducing existing facts.  If you
assemble a directory that has a modicum of creativity in its selection or
arrangement, you will get some protection under current copyright law.

> I see no particular reason to reward that kind of sweat with rights 
> equal to copyright.
>
> JE:  Agree.
ST: Actually, you don't, not if you support sui generis database
legislation. The rights granted to database owners is much broader than
the rights granted under copyright because these measures typucally lack
the same sorts of user protections that have been worked into the
copyright law. Seems paradoxical to reward unoriginal creations with
broader proprietary rights than you would even get under copyright law for
an original work.  But that's exactly what sui generis database
legislation does,

> > The "first to market"
> > advantage may not be as much as the sweater would wish, but I don't see
> > any logical or social argument why it should be so when it will become
> > such a pitfall for those trying to use the data.  And it is becoming
> > incredibly easy to amass such databases using computer technology, the
> > even less sweat is required.
> JE:  If that is the case, why do people want to copy the "sweated" database
> instead of developing another one based on the same information?
ST: I'll refer back to my question asked a few days ago about sole-source
databases.

> > Expensively produced databases can just as easily be protected by the
> > terms of subscription contracts that prevent reproduction outside some
> > norms.
> JE:  Not under current law.
ST: Yes indeed under current law. That's what licenses are all about.  
Even without UCITA, vendors are consistently able to enforce contractual
provisions that derogate users rights otherwise present in the copyright
act. And if a technological protection measure is used to enforce access
and copying restrictions, there's also the anti-circumvention rules of the
DMCA to worry about. The protections exist on many levels; if anything,
they are already excessive and need to be scaled back, not supplemented
with yet another set of restrictions.

> > Of course, the risk there is that those contracts would eliminate
> > the user's fair use rights entirely.
> JE:  Since there is no copyright, fair use does not apply.  You see, this
> really is a law whose practical effect is that more databases will be
> aggregated because there will be a financial incentive to do so.
ST: The lack of fair use and the ability of contracts to impose onerous
terms on users is exactly her point. And I think your incentive argument
is weak.  How would you explain the increased development of databases in
the US, even though there is no sui generis database legislation in place?  
There is no evidence that database production is being hindered by lack of
such new laws, (other than self-serving statements from database producers
that they need more protections).  And there is no evidence that in
jurisdictions that have enacted database laws, a sustained increase in
database production necessarily follows.

Samuel Trosow
University of Western Ontario