|
Testimony before the Subcommittee on Telecommunications, Trade, and Consumer Protection
U.S. House of Representatives
H.R. 1858 June 15, 1999
Presented by:
On behalf of:
I am Gregory O'Brien, Chancellor of the University of New Orleans. I appreciate this opportunity to testify before the Subcommittee on H.R. 1858, "Consumer and Investor Access to Information Act of 1999." My testimony is presented on behalf of the Association of American Universities, the American Council on Education, and the National Association of State Universities and Land-Grant Colleges, which together represent over 1,500 colleges and universities. The colleges and universities that are members of these associations conduct the preponderance of the nation's academic research, produce most of its Ph.D.s as well as Master's and professional students, and educate millions of undergraduates each year. These institutions understand the need to protect databases, and they support legislation targeted to address unfair competition and database piracy. Indeed, universities and colleges often are creators of collections of information and have a vested interest in protecting the authenticity and integrity of those collections. Let me state at the outset that I am not here as legal scholar, copyright attorney, or information expert but as a university administrator concerned with maintaining the breadth and quality of our university research and education programs. We appreciate the Subcommittee's consideration of H.R. 1858. We believe the bill offers an excellent starting point for addressing the database protection issue. The bill provides protection against database piracy, while at the same time respecting our single core principle-that we must maintain our traditional access to and use of data and information as the cornerstone of scientific and scholarly research, teaching and learning. The higher education associations believe it is imperative to preserve the Constitutionally based premise of this nation's information policy that no one may own facts or information or may prevent the full, unfettered use of facts and information. As the Supreme Court said in Feist, "all facts-scientific, historical, biographical, and news of the day ... are part of the public domain available to every person." Feist Pubs., Inc. v. Rural Telephone Service Co. 499 U.S. 340, 348 (199 1), quoting Miller v. Universal City Studios, Inc., 650 F-2d 1365, 1368 (5th Cir. 1981). "[T]he raw facts [in a compilation] may be copied at will. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art." 499 U.S. 340, 350 (1991). This policy has served the country well. The United States stands at the forefront of learning, science and technological achievement, and the nation has benefited richly from this leadership in international economic competitiveness, lifesaving advances in medicine and health care, technological superiority in defense, and an enriched quality of life for our citizens. We believe that the enlightened information policies of this nation have played a significant role in sustaining the creativity and productivity of the research and education programs that led to these benefits. Congress should not enact any legislation that could threaten this fundamental principle that facts and information remain in the public domain. Because of the importance of access to data for research and education-indeed, for the effective functioning of a democratic society, congressional decisions about the proper scope of protection for compilations of information should err on the side of caution and access to information. Based on this principle of preserving access to and use of facts, we can identify two critical standards that any legislation to protect compilations of information should meet. First, protection should be targeted to deal with specifically identified wrongful conduct. Second, protection should be addressed to a clearly defined class of materials and should be limited to compilations as compilations, not the facts or the information per se. In the following discussion, I first provide an overview of the basic academic activities that would be threatened by database legislation that is overly broad in its protective mantle. I then examine H.R. 1858 against the standards identified above.
I. The Academic Environment and Activities Potentially Impeded by Database Legislation. The process of translating data into knowledge requires the open exchange of information among allied scholars and critics alike. Increasingly, research is conducted in teams, often from several institutions. Data are drawn from multiple sources, recombined and merged with new data to produce data sets that may lead to new and unanticipated findings. Data sets vary from the results of a single experiment, captured in a table in a single journal article, to the vast databases of information compiled from meteorological remote sensing instruments, geographic information systems, particle accelerators, and systematic aggregations of research results to produce databases of genomic, chemical, and medical information, and much more. Databases supporting research and scholarship are not limited to the sciences. Databases supporting work in the humanities and social sciences are proving increasingly essential to advancing knowledge in these disciplines. Specialized dictionaries, annotated bibliographies of worldwide research resources, census information, and compilations of text citations are just a few of the systematic compilations of information critical to humanistic and social science research. In the academic community, databases are dynamic instruments; they are not only sources of information, but they themselves-or components of them-become ingredients in new products, both through the combination of multiple contemporaneous data sets to produce qualitatively new products, and through the re-analysis of prior data from new perspectives provided by new findings or new analytic tools. A scientist may apply a formula developed from his or her research to a different set of data, yielding a different interpretation of those data; multidisciplinary researchers may combine components from physical, biological, chemical, and meteorological databases to understand the dynamics of ecological systems; social scientists may combine elements of demographic, economic, legal, and political databases in comparative analyses of national or regional populations worldwide. Digital technologies are creating new analytic methods and tools at a staggering pace, turning yesterday's possibilities into breathtaking realities today. These breakthroughs have led to new discoveries in medicine, engineering, and many other fields, leading to the creation of entirely new commercial ventures and products. The future holds enormous possibilities for enhanced research collaboration, productivity, and economic development if researchers can rely on open communication and ready access to data. Such an environment can only serve to enrich the education of students as well. Some of the best education is learning by doing and by discovering, and students are increasingly using databases to draw their own conclusions, duplicating the research process to learn through discovery under the guidance of faculty. For all of these research and educational activities, faculty and students must be able to have open and easy access to compilations of data of all sizes, from single research results to large databases, and they must be able to work with these compilations-extracting, combining, and aggregating sets of data-to advance the frontiers of knowledge and educate students about those advances. These academic uses of information do not require that all information be free; indeed, universities now pay substantial sums for commercial databases. But these uses do require sufficiently flexible conditions of use, conditions that can be stultified by a proprietary protection scheme that makes use, reuse, and recombination difficult and militates against the ability to exchange information with colleagues and students.
II. The Standards Against Which Legislation to Protect Compilations Should Be Judged First, the protection should be targeted to deal with specifically identified wrongful conduct, H.R. 1858 meets this criterion. The prohibition against dissemination to the public of a copy of a database in a manner that causes substantial competitive harm is a reasonable response to the threats identified by those who seek added protection for databases. The single clear theme we have heard throughout this debate, and the single clearest need we can identify, is the need to prevent pirates who copy databases and disseminate them as their own in a manner that destroys the market for the original. The case for additional protection has not been made. As we have said, Congress should err on the side of our traditional and highly successful policy of access to information. Second, protection should be addressed to clearly defined subject matter. If the goal is to protect incentives for the creation of large databases that require extensive effort to develop and organize, the legislation should be crafted to apply to just such works. The risk of spillover into other types of works should be minimized. Further, it is essential that the legislation protect the compilations as compilations, not the facts or the information contained in the compilations per se. While this is a difficult line to draw, it is critical that it be drawn properly. H.R. 1858 comes close to meeting this goal. However, we do believe there could be some adjustments to the definition of "databases" to clarify the distinction between other works that may have characteristics identified in that definition, but that should not, themselves, be considered databases. For example, an individual history book or scientific article might collect "discrete items of information" for the "purpose of providing access" to them. It would be unreasonable to contend, however, that such works should be considered "databases." I should emphasize that we do not seek a free ride on the work of others. Legal and technical rules already exist to provide substantial protection against such free riding. Our institutions pay for databases and intend to continue to pay for databases. The relevant question is whether additional legal protection is necessary or justified in light of the threat overly broad legislation poses to traditional educational and scientific activities. We believe the answer is legislation such as H.R. 1858 that offers protection against unfair competition and database piracy without jeopardizing access to information. In seeking to preserve legitimate access to information, however, we do not argue that scientific, educational, and research institutions should have the right to destroy the incentive to create a database by broadly disseminating that database to the public. We do not understand this to be permitted by the legislation, and would be happy to work with the Subcommittee to clarify this issue. We commend the Commerce Committee and its Telecommunications Subcommittee for proceeding carefully to craft legislation targeted to solving a specific problem. To do otherwise could result in legislation with unintended consequences that could produce a chilling effect on research collaboration, educational enrichment, and economic productivity in the years ahead. We appreciate the Subcommittee's leadership on this important issue. The higher education associations stand ready to work with you to support your efforts to achieve fair and balanced database legislation.
|