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Crisis over copyrights

International copyright treaties under negotiation could determine the future of information in the digital age.

Most businesses see only dollar signs when they think of the Internet, but electronic information brokers like Lexis-Nexis see red.

These companies want to stop what they view as nothing less than information highway robbery committed by Netizens who copy, share, or post portions of commercial databases. And to counter this digital banditry, the Information Industry Association has been lobbying to pass laws that allow databases to be copyrighted.

The idea, which has been defeated in Congress twice before, suffered another setback Thursday when the United States distanced itself from a database treaty being debated by the World Intellectual Property Organization as it meets this month on international copyright law in Geneva, Switzerland. Nevertheless, it isn't likely to die anytime soon, even though critics contend that the idea is overkill and would stifle free speech and marketplace competition.

The concept is known by the obscure Latin term of sui generis, which translates literally to "of a kind." But its consequences are far from academic.

Today, it's only possible to copyright databases if the owner can prove some originality in the selection, arrangement, or expression of facts. So, while an encyclopedia can be copyrighted, the facts contained in it remain in the public domain.

Bruce Lehman,
U.S. patents
Under the sui generis concept, however, hundreds of years of precedent would be reversed to allow database owners to copyright any collection of facts in which they have made a "substantial" investment.

As proposed in the Geneva treaty, the sui generis concept could expunge rafts of information from the public domain, impair free speech, and put a deep freeze on research as well as competition, according to the opposing letters that poured in to the U.S. delegation at Geneva last week.

James Love, director of the Consumer Project on Technology
"Thousands of persons make unauthorized copies of cartoons with Xerox machines or for overhead slides, to decorate offices or assist in presentations. But when a few individuals post unauthorized copies of Far Side cartoons on their personal Web pages, the New York Times reports this in a page-one story as evidence that the Internet needs to be regulated," James Love, director of the Consumer Project on Technology, said in a press briefing from the conference.

Possible results of "sui generis"
One controversial provision of the database treaty would make it possible to copyright facts. The idea has spawned a lot of speculation about its possible effects:
Students could copyright homework, which couldn't be altered without permission.
Sports scores and statistics couldn't be quoted without permission.
Stock exchanges could copyright quote tables and charge for access to them.
The contractor that maintains Congress's Thomas database could copyright it.
Nearly anyone could copyright the Internet's now public traffic-routing databases and charge for their use.
Opponents also expressed concern that the treaty's term of copyright for databases--25 years--could be extended infinitely, so long as the owner continued to update the database. Moreover, they note, the treaty included no provisions for "fair use," which lets people use copyrighted works for reporting, research, or educational purposes.

That criticism has been dismissed by U.S. Patents and Trademarks Commissioner Bruce Lehman as "ridiculous." And small wonder: Lehman introduced the concept of sui generis into the copyright debate in a paper he wrote two years ago.

Sui generis surfaced again in a subsequent white paper and in legislation that stalled in the House and the Senate in 1995 and again earlier this year. The concept has drawn strong opposition from libraries, online services, telecommunications companies, citizens' groups, and law professors.

The information industry and Commissioner Lehman remain undaunted in the face of this intensifying opposition. "Lehman made some promises to important industry people that he would 'get' [sui generis] for them, and he is determined," said Michael Davis, a law professor who also sits on the board of the Union for the Public Domain, a citizens' group that opposes measures to curtail public access to information.

That determination may be inspired at least in part by forces beyond his control. As federal legislators debated and tabled proposals in Congress over the last several months, their European counterparts were working at a fast clip to forge laws of their own, legislation that the Information Industry Association fear could potentially supersede any tight U.S. regulations.

European Union member states are required to draft laws that implement sui generis rights by the end of 1997. The EU directive only offers a copyright term of 15 years and makes explicit concessions for fair use, but it doesn't protect databases held by non-EU companies, such as those based in the United States.

Pamela Samuelson, professor of law, University of California at Berkeley
"The fear is that EU countries will come in and suck down U.S. databases with a straw," said Pamela Samuelson, a professor of law at the University of California at Berkeley and the author of many papers on digital copyright.

"By getting the first legislation, by getting the first treaties written, [the EU] has put a marker in the sand, she said. "Instead of having to make a case for why such extraordinary measures are necessary, now anyone who objects will have to make a case for anything other than this outrageous proposal."

Still, Samuelson argues, the sui generis right is not needed for a fair system of digital copyrights. "Database providers are already protected on many levels, by copyright laws, by contract law, and by reputation," she said.

"We may need a little more protection, but that remains to be seen." 

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