Copyright bills may limit access to facts

The House Subcommittee on Courts and Intellectual Property yesterday passed a heavily amended Collections of Information Antipiracy Act by Rep. Howard Coble (R-North Carolina).

The Coble bill aims to protect the "brow sweat," deep pockets, and future ventures of database creators, such as WestLaw, the American Medical Association, members of the National Association of Realtors, and Reed Elsevier, which owns Lexis-Nexis.

From Web crawlers to medical journal articles, nationwide court rulings, phone directories, and stock quotes, electronic database operators currently can't own copyrights on the facts they catalog. But consumer advocates argue that the database legislation on the table would give a select group of companies an unprecedented grip--on everything from usage rights to price setting--on the facts they compile, which could stifle product development, new discoveries, and value-added businesses.

To quell these concerns, considerable changes were made to the Coble bill yesterday, including the tightening of a provision that would prevent the extraction of all or a substantial part of a collection of information if the action would "cause harm to the actual or potential market" for the owner of the database.

Now the provision only allows protection of an original collection for up to 15 years, although it could be continuously renewed. The bill also states that a company would have to prove "significant" damage to their future business before bringing a claim under the act. Violators still could face a fine of up to $250,000 for each offense and up to five years in prison.

In addition, the bill was revised to give researchers and scholars more leeway when using research that is stored in databases. For example, the changes would permit a professor to write a book that disputes a colleague's research with no hassle when it comes to citing his colleague's facts. The first version of the bill could have forced the professor to get permission or pay a fee before using any facts from the original publisher.

Despite the changes and exemptions for research, however, opponents of the Coble bill are nevertheless concerned about its possible passage. They say the bill would still allow database creators to fence off their information and charge high prices for access.

"It still doesn't deal with the problem sole-search databases--when there only is one provider and the possibility of monopoly pricing that comes from that," said Morrison & Foerster attorney Jonathan Band, who represents the Online Banking Association. Financial institutions are worried the bill will prevent them from supplementing or reformatting information in others' databases.

Which bill is better?
Many critics of Coble's proposal prefer a bill introduced yesterday by House Commerce Committee chairman Rep. Tom Bliley (R-Virginia), the Consumer and Investor Access to Information Act (H.R. 1858).

The bill would make it illegal to "duplicate a database collected by another person" or to sell a copied database in competition with the original collector. Unlike Coble's bill, the protection doesn't apply to future business ventures and makes room for competitors to collect the same information through other means.

"Bliley's bill leaves a lot more open for the downstream uses of information," said Skip Lockwood of the Digital Future Coalition, which represents academia and public institutions such as the American Library Association. "Coble's bill doesn't leave enough room for companies that take information that's out there and enhance it."

For instance, real estate companies are lobbying for Coble's bill because with the proliferation of the Internet and CD-ROMs, it is easy for someone to come along and lift their housing listings. Under Bliley's bill, a company could use the publicly posted listings to set up a new business that analyzes home prices. But based on Coble's bill, real estate companies likely could prevent such use of their data.

"The National Association of Realtors has always supported copyright protection of the compilation of current listings and relevant information as a unique contribution by realtors to the real estate transaction," states the association's Web site.

Coble's bill would "protect Realtor listings from unfair use by unscrupulous competitors," the association says. "The NAR is working to bring this legislation to final passage."

This is Coble's third attempt to get his bill passed. It was scrapped last session during last-minute negotiations that ushered the Digital Millennium Copyright Act into law.

After fierce opposition by academic and industry groups, a similar proposal, known as the sui generis database treaty, also was rejected by delegates at the World Intellectual Property Organization's Diplomatic Conference in December 1996.