WIPO Tables Database Protection Treaty

An international treaty limiting scientists' free access to nongovernmental databases was put on hold at a December meeting of the World Intellectual Property Organization (WIPO). The pro-posed database protection treaty had been added to the WIPO agenda as the result of intensive efforts by the information industry to broaden its ownership rights. Many in the legal and science communities believe that this treaty's enactment in the United States would erode the rights of the American science community and would subsequently un-dermine its research efforts. Fortunately, the discussions at WIPO on two unrelated proposals were prolonged, and talks on the database protection treaty were postponed indefinitely.

This treaty follows closely the "Database Investment and Intellectual Property Antipiracy Act of 1996" (H.R. 3531), which was introduced by Rep. Carlos Moorhead (R-CA) in May 1996.

H.R. 3531 was rooted in a 1991 Supreme Court decision (Feist v. Rural Telephone), which held that, based on the Constitution's Intellectual Property Clause, a collection of facts arranged in a conventional format could not be pro-tected under copyright laws. Realizing that it would be difficult to contest the Supreme Court ruling, industry advocates made use of Congressional Com-merce Power to bypass the Intellectual Property Clause to produce H.R. 3531.

Internationally, the precedent for this legislation was set in February 1996 by the European Union (EU), which approved a directive on the legal protection of databases. H.R.3531 would incorporate many of the features of the EU directive. Key provisions of the bill include (a) protection for any database that is the result of a qualitatively or quantitatively substantial investment in human technical, financial, or other resources in the collection, assembly, verification, organization, or presentation of the database contents; (b) databases "made by a governmental entity" would be excluded from protection, but those prepared by private firms or persons using governmentally generated or collected data would be covered; and (c) the effective term of protection for databases would be perpetual, at least for dynamic compilations in electronic form.

The National Academy of Sciences, National Academy of Engineering, and the Institute of Medicine deserve credit for mobilizing U.S. researchers to register their opposition to the WIPO proposal.

Rep. Moorhead, the sponsor of H.R. 3531, retired last year and, although two of his cosponsors (Reps. Bob Goodlatte [R-VA] and Bruce Vento [D-MN]) were re-elected, it remains to be seen if they will carry this effort forward.