POLITICAL SCENE

June 1997

Scientific Databases Caught In Copyright Web

As scientists, we tend to take access to data for granted. Such access has been the foundation for our nation's highly successful research system. The text of a journal article, for example, is subject to copyright protection, but the supporting data are not. Anyone is free to take that information and incorporate it into their own research or use it to check the author's results.

Access has also become important on a larger scale. With the development of a global seismographic network and powerful remote-sensing technologies, an increasing number of geoscientists have come to rely on access to large, publicly supported electron ic databases for their research.

That access is threatened by a draft treaty being considered by the World Intellectual Property Organization (WIPO), an arm of the United Nations. The treaty would greatly expand the ability of the private sector to protect scientific databases that we re previously in the public domain. Similar proposals have already been adopted by the European Union and introduced in the U.S. Congress.

Although concerns raised by the scientific community succeeded in delaying the treaty's scheduled ratification last December, the issue is again gaining steam. A National Research Council report released this April confirms scientists' concerns that th ese legal changes could limit access to public-domain data and dramatically raise the costs of research.

The proposed legal changes respond to changes occurring in the electronic exchange of information. Formerly the exclusive realm of scientists, electronic databases are now dominated by commercial, in particular entertainment, applications. In the rush to protect these commercial databases, access to scientific data may become collateral damage.

Why not simply exempt scientific databases? European countries are requiring their scientific agencies to become self-sufficient or are turning over data collection and distribution to the private sector. In both cases, they hope that the new protectio ns will help to turn a profit. Moreover, those opposed to the proposed changes argue that relying on exemptions reflects a reversal of U.S. policy, shifting the burden of proof onto those seeking access and away from those seeking to restrict it.

What to Copyright?

The Constitution provides copyright protection to "promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." From the nation's beginnings, cou rts have been trying to decide what may be copyrighted. One side has argued for creativity as the crucial test for protection, while the other has contended that effort alone is enough, thus protecting an "industrious collector."

Current copyright law, supported by a unanimous 1991 Supreme Court decision, holds that creativity is necessary for protection. Consider the phone book. The simple alphabetization of the white pages does not meet the creativity test, but the categoriza tion and design of the yellow pages do, and they may be protected.

Most scientific databases, like the white pages, are collections of facts not subject to copyright protection. For those that qualify for protection, researchers and educators are granted broad "fair-use" exemptions.

Across the Atlantic, a major effort has been under way to harmonize the laws of the European Union's member states. As part of that effort, the union passed a directive on copyright protection for databases in February 1996 establishing a new type of p rotection for the industrious collector. The directive still includes protection based on creativity but adds a second sui generis (unique) protection that prohibits the unfair extraction of a "substantial" part of a database.

In May 1996, an information industry trade group convinced the chairman of the House Subcommittee on Courts and Intellectual Property, Rep. Carlos Moorhead (R-Calif.), to introduce legislation (H.R. 3531) that would broaden sui generis protectio n even further with virtually no fair-use exemptions. In August, the Europeans proposed the WIPO treaty to extend sui generis protection for databases worldwide. The draft treaty received the support of the U.S. Department of Commerce, whose Patent and Trademark Office was handling the negotiations, and was to be ratified at a conference set for Geneva in December.

Scientists Object

Up to this point, the scientific community had paid little attention to these legal debates. But that changed with the release of a letter to the Secretary of Commerce from the presidents of the National Academies of Science and Engineering and the Instit ute of Medicine. The letter argued that the proposed treaty would "significantly inhibit researchers seeking to reuse and combine data for publication or for research" and urged a delay in the treaty's ratification until these impacts were better understo od.

Calls for delay also were issued by the Association of American Universities, the International Council of Scientific Unions, and a number of scientific societies, including the American Geological Institute. The concerns voiced by scientists, combined with issues raised by developing countries, succeeded in putting the treaty on hold.

In their letter, the academy presidents cited the findings of a National Research Council committee that had been studying the international exchange of data in the natural sciences for several years. The committee's final report, Bits of Power, was released this April. It strongly endorses a policy of full and open access for data collected with public funds and calls the proposed legal changes "precipitous and radical." The committee found no evidence of any commercial harm resulting from curr ent copyright protections, and they argue that improved encryption methods, not treaties, are the solution to piracy of electronic databases.

What Comes Next?

The countries in the European Union are required to implement the database directive by the end of this year. Discussions on the WIPO treaty are scheduled to continue in September, but the increasing opposition of U.S. science agencies and the developing world makes further progress unlikely.

With European implementation a done deal and WIPO action stalled, attention has shifted to Congress, where Moorhead's successor as subcommittee chair, Rep. Howard Coble (R-N.C.), is expected to introduce a new bill similar to H.R. 3531 and hold hearing s this summer. Rumors say the Senate Judiciary Committee supports his efforts.

The scientific community is already finding that raising concerns is easier than finding consensus solutions, a task complicated by many competing interests, even among scientists. With a clear stake in the outcome, however, scientists must take a leadi ng part in the ongoing discussions. At a time when science has never been more international, we can ill afford to jeopardize the very openness and ease of communication that we have worked so long to achieve. In the words of the Constitution, we must he lp decide whether the proposed database protections will "promote the progress of science" or hinder it.