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EU Database Directive Draws Fire

A list of the EU's intellectual property directives, including the Database Protection Directive, 96/9/EC, is available online at: www.europa.eu.int/comm/internal_market/en/intprop/docs/index.htm The blessings of an increasingly advanced digital world are many: faster data processing, massive data storage. But with these newfound capabilities come new questions about ownership. Who owns the mountains of data contained in databases--whether stock prices, real estate values, or countless genom

By | July 8, 2002

A list of the EU's intellectual property directives, including the Database Protection Directive, 96/9/EC, is available online at: www.europa.eu.int/comm/
internal_market/en/
intprop/docs/index.htm

The blessings of an increasingly advanced digital world are many: faster data processing, massive data storage. But with these newfound capabilities come new questions about ownership. Who owns the mountains of data contained in databases--whether stock prices, real estate values, or countless genome sequences? What intellectual property rights do database creators have? And how much protection is too much? In recent years, a European Union (EU) database directive has brought a sense of urgency to such issues--and some scientists fear that the law has gone too far.

As part of efforts to ease transfer of goods and services within Europe, the European Union has been attempting to harmonize the laws of the very diverse European nation states. EU directives are to be made into law by individual EU countries within three years. When it came to copyright law, however, they encountered a stark contrast between the Anglo-American "sweat of the brow" tradition that emphasizes fact compilation and the European "right of the author" tradition that puts greater emphasis on protecting creativity. They decided the new law should reach far beyond the protection of creativity in databases to include the compilations of facts as well. The directive, first passed in 1996, was meant to protect database information from unauthorized use for years after the database has been created.

Photo: Courtesy of Ferris Webster
 Ferris Webster

But some parties, particularly some scientists, are concerned that the law protects too much and hence threatens free sharing and dispersal of scientific information, a long-held and highly valued aspect of the scientific enterprise. In late May, University of Delaware oceanographer Ferris Webster, a representative of the International Council for Science, and retired physicist Sir Roger Elliott, representing the consortium of All European Academies (ALLEA), traveled to Brussels to voice their concerns to EU commission members. The commission has begun a phase of review during which officials will assess the directive based on the input of all EU countries. As of late last year, all 15 EU countries had passed legislation resembling the EU database directive, with some countries interpreting the wording of the directive more liberally than others.

The crux of the worry lies with what critics see as insufficient exceptions to the law for scientific teaching and research purposes. According to Elliott and Webster, the problem boils down to one passage of the directive in particular. It stipulates that member states may allow lawful users the free "extraction" of database contents if used "for the purposes of illustration for teaching or scientific research" as long as the source is acknowledged and "to the extent justified by the noncommercial purpose to be achieved." Critics charge that this fair-use exception should be mandatory. France, Greece, and Italy, for example, have not incorporated it into their respective national laws. "The fair-use provision should be mandatory rather than optional," says Webster. Phrases like "illustration for teaching or scientific research" and "noncommercial purpose" are too vague and could threaten the traditional reuse of scientific data.

Photo: Courtesy of Sir Roger Elliot
 Sir Roger Elliot

Paul Uhlir, director of international scientific and technical information programs at the US National Academy of Sciences, also points out that the directive could extend database protection indefinitely. Uhlir, who monitors database legislation in the United States and Europe, notes that the directive extends protection for 15 years initially. But that term is extendable with any substantial update of a given database. "It basically runs indefinitely as long as the publisher continues to update the content within say 15 years," explains Uhlir, adding that such a provision would be illegal under US law. "The directive is an entirely new approach, where anything more than an insubstantial part of a database--that means a few facts basically--are protected."

DIFFERENT DATABASES, DIFFERENT PRIORITIES Only recently have European scientists taken notice of the directive. "The European law really passed into existence in Europe without the scientific community really noticing what was happening," says Elliott. In the United States, the directive caused an uproar among scientists years ago, especially after the European Union sought to have the World International Property Organization (WIPO) establish an international agreement based on the directive. Much dispute and US debate in the years since has left any potential database protection legislation stalled in committee. Such legislation is under the purview of the House Energy and Commerce Committee, chaired by Billy Tauzin (R-La.), and the Judiciary Committee, chaired by F. James Sensenbrenner Jr., (R-Wis.).

As in Europe, such legislation has implications far beyond science. On the side of greater database protection are those who generally produce their own original data--major publishers like Elsevier, large media companies like Reuters, stock exchanges like NASDAQ and the New York Stock Exchange, and the National Association of Realtors, which is looking to protect its Multiple Listings Service. Frequent downstream users of data, including scientists, on the other hand, are wary of too much protection.

In the landmark 1996 US case of Feist Publications v. Rural Telephone Service Co., the Supreme Court ruled that the telephone company's white pages were not protected by copyright because the data was not arranged and selected in an original manner. The competing telephone directory publisher was allowed to extract all of the data from the white pages without liability for copyright infringement. Subsequent rulings have suggested that the yellow pages do have copyright because somebody had done some work to categorize things. In the United Kingdom, however, courts ruled that the horse racing board, which organizes all horse races, did have copyright protection over its list of runners. Big bookmakers were forced to pay for such information.

Scientific databases have special circumstances that, critics say, the directive fails to unambiguously recognize. Scientists routinely use data points from large databases. Oceanographers like Webster might, for example, extract temperature readings from large databases of global climate data for use in an original analysis. "I could, in fact, be charged with a crime in some countries in Europe for having done something like that," Webster claims.

However, so far no creator of a scientific database has brought a complaint to court. "To our knowledge these claims [of the directive's critics] have never been substantiated nor have any court cases on these issues occurred," a member of the EU Commission tells The Scientist via E-mail. Without a cautionary tale in hand, Elliott, Webster, and other concerned scientists will have a hard time arguing that the directive must be amended. "Some people say 'you guys are jumping at shadows,'" says Webster. He worries, though, that if the directive leads to a WIPO international law, it could apply much more severely worldwide; database creators in non-European countries may be more insistent on enforcing the directive's database protection.

The EU Commission has enlisted the Amsterdam-based legal firm of Nauta Dutilh to conduct an independent evaluation of the directive by the end of 2002. The EU commission will put together a draft report by early 2003, and a final report will be submitted to the European Parliament sometime in 2003.

Eugene Russo (erusso@the-scientist.com) is a contributing editor.

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