Proceedings of the Workshop on Promoting Access to Scientific and Technical Data for the Public Interest: An Assessment of Policy Options

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PROCEEDINGS OF THE WORKSHOP ON PROMOTING ACCESS TO SCIENTIFIC AND TECHNICAL DATA FOR THE PUBLIC INTEREST: AN ASSESSMENT OF PO Copyright Preface Acknowledgments Contents PART I WORKSHOP PRESENTATIONS 1 Introductory Remarks 2 Keynote Address General Discussion 3 Characteristics of Scientific and Technical Databases GEOGRAPHIC DATA PANEL Government Data Activity General Discussion Not-for-Profit Data Activity General Discussion Commercial Data Activity General Discussion GENOMIC DATA PANEL Government Data Activity General Discussion Not-for-Profit Data Activity General Discussion Commercial Data Activity General Discussion CHEMICAL AND CHEMICAL ENGINEERING DATA PANEL Government Data Activity General Discussion Not-for-Profit Data Activity General Discussion Commercial Data Activity Data Capture General Discussion METEOROLOGICAL DATA PANEL Government Data Activity Not-for-Profit Data Activity General Discussion Commercial Data Activity General Discussion 4 Economic Factors in the Production, Dissemination, and Use of Scientific and Technical Databases General Discussion 5 Overview of Technologies for Protecting and for Misappropriating Digital Intellectual Property Rights: The Current Situatio GENERAL DISCUSSION 6 Legal and Policy Issues SUMMARY OVERVIEW OF EXISTING AND PROPOSED INTELLECTUAL PROPERTY RIGHTS REGIMES FOR DATABASES Subject Matter Scope The Status Quo Copyright Unfair Competition Law Contract Law Technical Protection Sui Generis Property Rights Model Unfair Competition/Misappropriation Model Term of Protection The Status Quo Copyright Unfair Competition Law Contract Law Technical Protection Sui Generis Property Rights Model Unfair Competition/Misappropriation Model Type of Protection/Standard of Harm The Status Quo Copyright Unfair Competition Law Contract Law Technical Protection Sui Generis Property Rights Model Unfair Competition/Misappropriation Model Who Is Protected? The Status Quo Copyright Unfair Competition Law Contract Law Technical Protection Sui Generis Property Rights Model Unfair Competition/Misappropriation Model Jurisdictional Scope/Where Protection Is Provided The Status Quo Copyright Unfair Competition Law Contract Law Technical Protection Sui Generis Property Rights Model Unfair Competition/Misappropriation Model Permitted Acts The Status Quo Copyright Unfair Competition Law Contract Law Technical Protection Sui Generis Property Rights Model Unfair Competition/Misappropriation Model Complete Exclusions The Status Quo Copyright Unfair Competition Law Contract Law Technical Protection Sui Generis Property Rights Model Unfair Competition/Misappropriation Model Relationship to Other Laws The Status Quo Copyright Unfair Competition Law Contract Law Technical Protection Sui Generis Property Rights Model Unfair Competition/Misappropriation Model Remedies (Civil/Criminal) The Status Quo Copyright Unfair Competition Law Contract Law Technical Protection Sui Generis Property Rights Model Unfair Competition/Misappropriation Model Deposit Requirements The Status Quo Copyright Unfair Competition Law Contract Law Technical Protection Sui Generis Property Rights Model Unfair Competition/Misappropriation Model SUMMARY OF FEDERAL GOVERNMENT INFORMATION LAW AND DATA POLICIES GENERAL DISCUSSION PART II DISCUSSION SESSIONS ON THE CURRENT LEGAL AND TECHNICAL SITUATION 7 Government-Sector Data 8 Not-for-Profit-Sector Data 9 Commercial-Sector Data PART III Discussion Sessions on the Potential Impacts of Legislation and Assessments of Policy Options 10 A Strong Property Rights Model for Protecting Databases 11 An Unfair Competition Model for Protecting Databases 12 Promoting Access to and Use of Government Scientific and Technical Data—An Assessment of Legal and Policy Options 13 Promoting Access to and Use of Not-for-Profit-Sector Scientific and Technical Data—An Assessment of Legal and Policy Optio 14 Final Plenary Discussion Appendixes APPENDIX A STUDY COMMITTEE STUDY DIRECTOR WORKSHOP SPEAKERS AND PANELISTS APPENDIX B WORKSHOP AGENDA WORKSHOP PARTICIPANTS APPENDIX C SUMMARY PART I. TODAY'S DATABASES Some Commercial Databases Example 1: A Sampler of CD-ROMs Example 2: An Internet Sampler Example 3: Other Types of Databases Some Scientific Databases Example 4: Some Electronic Database Samplers Example 5: A Large Nuclear Science Database Example 6: Elsevier Science Example 7: Biotechnology Examples 8(a)-8(h): Anecdotes and Profiles. Lessons Learned Protection under Existing Law Self-Help Protection Unprotected Products PART II. EXISTING AND PROPOSED LAW The Limits of Federal Copyright Protection The INS Case The Feist Case Copyright Protection After Feist Unfair Competition After Feist Implications for Science State Contract Law Implications for Science The European Union Directive Implications for Science Proposed Legislation and Suggested Reforms The World Intellectual Property Organization Treaty Proposed Congressional Legislation State Legislation Academic Proposals PART III. POLICY IMPLICATIONS Is There Room for Improvement? Issue 1: If Statutory Protection Were Enacted, What New Products Would Be Created? Issue 2: Has the Absence of Statutory Protection Resulted in Economic Distortions and, If So, How Serious Are They? Pitfalls and Drawbacks Issue 3: Will Protecting First-generation Databases Discourage the Creation of Subsequent Products? Issue 4: Should Statutory Protection Include Exemptions for Socially Useful Copying? Issue 5: Would Increased Rights Allow Database Providers to Charge Higher Prices Within Individual Niche Markets? Issue 6: Could Statutory Protection Damage Science by Inadvertently Privatizing Its Databases? Issue 7: How Would Database Protection Interact with Other Forms of Intellectual Property Protection? Threats from the European Union Issue 8: Does the European Union's Position on Databases Change the Foregoing Analysis? AVAILABLE POLICY TOOLS Option 0: No Change in Existing Law Option 1: Judge-made Unfair Competition Law Option 2: Improved Unfair Competition Law Option 3: Sui Generis Protection for a Limited Term Option 4: Sui Generis Protection with Not-for-Profit/Academic Exemptions Option 5: Sui Generis Protection with a Defense for Improved Databases Option 6: Shrink-wrap Contract Reforms Option 7: Administrative Solutions CONCLUSION EXHIBITS NOTES Appendix D