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Resolving the US Database Dilemma with an Eye Toward International Cornell International Law Journal Volume 34 Article 5 Issue 1 2001 Database Protection: Resolving the U.S. Database Dilemma with an Eye toward International Protection Michael Freno Follow this and additional works at: http://scholarship.law.cornell.edu/cilj Part of the Law Commons Recommended Citation Freno, Michael (2001) "Database Protection: Resolving the U.S. Database Dilemma with an Eye toward International Protection," Cornell International Law Journal: Vol. 34: Iss. 1, Article 5. Available at: http://scholarship.law.cornell.edu/cilj/vol34/iss1/5 This Note is brought to you for free and open access by Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell International Law Journal by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. Database Protection: Resolving the U.S. Database Dilemma with an Eye Toward International Protection Michael Freno* Introduction ..................................................... 166 I. Database Protection in the United States .................. 167 A. Present Copyright Protection of Databases in the United States ......................................... 168 1. Pre-1991 Protection of Databases: The Sweat of the Brow Doctrine ..................................... 168 2. Feist Publications, Inc. v. Rural Telephone Service Co.: The Originality Requirement ................... 169 3. Post-1991 Protection of Databases: Creative Databases......................................... 169 B. Legislative Proposals for Protecting Non-creative Databases ............................................ 171 1. Database Investment and Intellectual Property Antipiracy Act (House Bill 3531) .................... 171 2. Collections of Information Antipiracy Act (House Bill 2652) ............................................. 172 3. Collections of Information Anti-Piracy Act (House Bill 354) .............................................. 174 4. Consumer and Investor Access to Information Act (House Bill 1858) .................................. 175 II. The International Framework for Database Protection ..... 176 A. International Copyright Treaties and Related Trade Agreem ents ........................................... 177 1. Berne Convention .................................. 177 2. WIPO Copyright Treaty and Proposal ............... 178 3. TRIPS ............................................. 180 B. EU Database Directive ................................ 182 III. A Compromise Proposal for U.S. Database Protection ..... 184 A. An Argument for Additional Protection ................ 185 1. The Argument for Protecting Non-creative Databases . 185 * Associate, Kenyon & Kenyon, New York; J.D. 2001, Cornell Law School; B.A. 1993, Kenyon College. 34 CORNELL INT'L LJ. 165 (2001) Cornell International Law Journal Vol. 34 a. To Create an Incentive to Invest in New Databases ..................................... 185 b. To Enhance Accountability for Database Proprietors .................................... 187 c. To Protect the U.S. Economy ................... 187 2. Responding to the Opponents of DatabaseLegislation. 188 a. Database Protection Will Create a Hazardous Monopoly over Knowledge ..................... 189 b. Alternative Forms of Protection Already Exist to Protect Non-creative Databases ................. 191 c. Database Protection Is Unconstitutional ........ 194 B. The Problem with the Current Legislative Proposals .... 195 1. The Problem with H.R. 1858 ....................... 195 a. Domestic Shortcomings ....................... 195 b. International Shortcomings .................... 196 2. The Problem with H.R. 354 ......................... 200 a. The Sole-Source Problem ...................... 200 b. The Re-compilation Problem ................... 201 c. Freedom of Contract Issues .................... 201 d. The Perpetual Duration Problem ............... 202 e. Issues Related to the Burden of Proof .......... 202 f. The Problem of Indefiniteness ................. 203 C. A Compromise: Resolving the Database Dilemma with an Eye Toward International Protection ................ 205 1. The Compromise ................................... 206 a. Solving the Sole-Source Problem ............... 206 b. Resolving the Re-compilation Problem ......... 208 c. Eliminating Freedom of Contract Issues ........ 211 d. Mitigating the Perpetual Duration Problem ..... 212 e. Switching the Burden of Proof ................. 214 f. Ending the Indefiniteness ...................... 214 1) Defining Substantial Part .................. 214 2) Defining Harm to the Market .............. 217 3) Defining a Substantial Investment to Trigger Protection ................................. 219 4) Sharpening the Reasonable Use Exceptions. 221 2. InternationalDatabase Protection ................... 223 Conclusion ...................................................... 224 introduction Imagine. Micromedex, Inc., a provider of in-depth medical information, invests hundreds of thousands of dollars developing a comprehensive and reliable database of poison antidotes called Poisindex. 1 Micromedex expects to recoup its costs and make a profit by licensing the database to 1. This fictional example is adapted from Anne E. Kornblut, Database Compilers Fightfor Copyright Protection, BOSTON GLOBE, Sept. 21, 1999, at Al. 2001 Database Protection hospitals and health clinics in the United States and abroad. The database provides an invaluable tool for the public, and Micromedex sells its first batch of copies in the United States. But then sales stop. Micromedex dis- covers that the database was copied onto the Internet and eventually cop- ied in the United States and Europe. Consulting its attorneys, Micromedex discovers that the copying was perfectly legal in each instance, and there was virtually nothing it could have done to protect its database from piracy.2 Unable to sell another copy, Micromedex writes off the loss and halts all investment in databases. Moreover, observing Micromedex's hard lesson, every other private investor avoids databases. As a result, U.S. busi- nesses fail to create countless databases that could benefit the public. This example illustrates the database dilemma in the United States. Over the past decade, Congress has contemplated several bills for pro- tecting non-creative databases 3 such as Micromedex's Poisindex. The issue is which proposal the United States should adopt. This Note offers a pro- posal for legislation to resolve the database dilemma in both the United States and abroad. Part I describes the history of database protection in the United States and recent legislative proposals for resolving the dilemma, including strong bills based on creating a sui generis4 right in certain forms of data and weak bills based on misappropriation law. Part II discusses the current international framework for database protection with an emphasis on a regional agreement adopted by the European Union in 1996, which created a sui generis right for protecting non-creative databases. Part III argues that because the two current legislative propos- als before Congress are flawed-one being too weak and the other too strong-a compromise proposal is required. The compromise attempts to strike a balance between creating an incentive for database makers5 to invest in databases, obtaining international protection for U.S. database makers, and preventing debilitating monopolies over data in the United States. I. Database Protection in the United States In the United States, copyright law provides scant protection for databases. 6 In what follows, the present state of database protection in the 2. This is not entirely true. Although Micromedex could not protect its database under federal copyright law, it may have been able to protect itself from piracy through licensing agreements and other self-created protections. See infra Part III. 3. For a description of non-creative databases, see infra Part I. 4. The European Union Database Directive uses this term to describe the right cre- ated for the protection of non-creative databases. This term is appropriate because such a right creates a new regime of legal protection that finds no origin in copyright laws, misappropriation laws, or any other area of U.S. law. 5. The term "database maker" includes the creator of the database and the entity owning the database. 6. Discussion of U.S. copyright law covers federal copyright, not state copyright. State copyright "claims are either preempted by the Copyright Act or provide protection that is useless for mass-produced, readily-accessible databases." Jeffrey C. Wolken, Note, Just The Facts, Ma'am. A Case For Uniform Federal Regulation of Information Databases in The New Information Age, 48 SYRACUSE L. RaV. 1263, 1291 (1998). Cornell InternationalLaw Journal Vol. 34 United States is presented in two subsections. The first describes present protection of creative databases under the Copyright Act.7 The second describes recent legislative attempts to extend protection to non-creative databases. A. Present Copyright Protection of Databases in the United States 1. Pre-1991 Protection of Databases:The Sweat of the Brow Doctrine Although creative databases are potentially copyrightable as "compila- tions" under the Copyright Act,8 an axiom of copyright law is that only expressions are protectable, not facts or ideas. 9 A database of facts stands on dubious ground. Historically, courts extended copyright law to cover some factual compilations under
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