The Virtual Lawyer - Database Duplicity

by David Crocker

Published 1997-10-01    Printer-friendly version

So there. You've invested countless hours and big bucks putting together an electronic database of highly useful information for paid public access on the Web. Things are going swimmingly until you learn that some deceiving creature is poaching individual datum and reselling them off his own site or in print. Now, for a little quiz. Please rate the effectiveness of the following remedies. Do you (a) hunt down and bludgeon the offender, (b) publish scatological references to the offender's ancestry, or (c) sue the SOB for copyright violation?

The first option is bold, dramatic and, well, final. Unfortunately, if you choose this course, there might be a lethal injection in your future. The second choice shows a certain damn-the-torpedoes inventiveness. Too bad a jury of your peers would consider it defamatory. Yes, option three seems like the solid choice. But if you chose this option, you would be outta luck. That's because the Supreme Court decided in 1991 that copyright protection does not extend to facts.

The Original Sausage

A little education, if you please. Copyright protection extends to original works of authorship. In order for your database to enjoy protection, you must inject some originality. Because a database is a "compilation" of preexisting materials or data, protection only runs to the way the data is selected, coordinated or arranged. When it comes to putting the data together, think of yourself as a food stylist. Copyright protection extends to the way you arrange the sausages on the plate, not to the sausages themselves. If someone plucks an individual sausage off the plate and arranges it on his plate, then there's nothing you can do about it. The reality is there's nothing original about the sausage itself. It simply exists. The same holds true for data. Believe it or not, however, it gets worse: if you arrange the sausages in a completely obvious and unimaginative fashion, then there's no originality. Your competitor can appropriate the arrangement as well.

Pro Bono Publico

Let's play public policy wonk for a moment and consider some issues. We all want to protect the guy or gal who puts out the effort and money to create a database. A database can have great and obvious social utility. On the other hand, do we want to restrict a free people's access to useful information? Remember, there is such a thing as the public domain and the notion of pro bono publico. We all need information to guide our lives and inform our choices.

We all subscribe to the Jeffersonian ideal of the informed citizenry, even though many of our fellow citizens are, in actuality, utter nincompoops.

Baby Steps and Stubbed Toes

In a digital age, however, databases are assuming an increasingly prominent place in the commercial arena. The European Union has been fumbling for a couple of years with database protection and even passed a "directive" on the subject that attempts to maintain a balance between a free flow of information and commercial protection of databases. The 105th Congress confronted this issue for the first time, turning thumbs down to the Database Investment and Intellectual Property Antipiracy Act of 1996 (H.R. 3531). The Database Act was opposed by a wide coalition of interests ranging from academic and scientific associations to Internet service providers. Why the opposition? Frankly, H.R. 3531 could serve as a guide on how not to write database legislation. It's all there.

Sweat of the Brow

First, the Act would have provided protection for a database if its makers invest "qualitatively or quantitatively substantial investment of human, technical, financial or other resources" in the collection, assembly or arrangement of a database intended for commercial exploitation. This is an explicit endorsement of the "sweat of the brow" concept of copyright protection, which has been explicitly rejected by the Supremes. Under this doctrine, originality need not be present so long as the "author" worked hard on his "creation."

No Extraction, No Market, No Competition

Second, the Act would have prohibited extraction and use of individual datum if done in a "repeated and systematic" fashion. It also would have prohibited "acts that conflict with a normal exploitation of the database or adversely affect the actual or potential market of the database." If passed, no competitor could use data in a competing database product in a market currently inhabited by the database owner or any market in which the database owner "has a demonstrable interest or expectation in . . . using or reusing the database." There goes competition and the free flow of information. A remarkable "twofer," even by Congressional standards.

Protection into Eternity

Finally, the Act would have extended protection for a database for twenty-five years after it was first made available to the public. But wait, if the database maker changes the database in a "commercially significant" way, then he can claim that the twenty-five years runs from the date of the change. Such changes can take the form of "accumulation of successive additions", deletions, reverifications, or alterations in "organization and presentation." Are you beginning to get the drift here? World without end, amen.

The Fight Continues

Be assured that H.R. 3531 is only the first round. It will be highly interesting to watch how theories of database protection evolve as the commercial significance of databases increases. If you are the unhappy owner of a database subject to regular poaching, don't assassinate the poachers. Simply stay tuned.

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