Vol 7 No 1 - Roger Williams University School of Law

suggestive of a bill designed merely to prevent unfair competition,H.R. 354 nevertheless extends protection to both the primarymarket of a database producer and to any related market, anddefines a “related market” sufficiently broadly that a databaseproducer would be able control a wide range of non-competitiveuses of data and reserve those potential markets for itself.11By contrast, H.R. 1858 would adopt a much narrowerapproach to data piracy by prohibiting (1) the use of any means orinstrumentality of interstate or foreign commerce orcommunication to sell or distribute to the public a database that isa duplicate of another database and is sold or distributed incompetition with the original database and (2) themisappropriation of real-time market information.12 Indeed, H.R.1858 arguably does little more than federally codify the commonlawtort of “hot news” misappropriation,13 as it might apply todatabases used in interstate and foreign commerce, and providethe Federal Trade Commission with enforcement authority. Likethe common-law tort of “hot news” misappropriation, H.R. 1858responds straightforwardly to the problem of data piracy byprohibiting the wholesale duplication of databases for competitivepurposes or the misappropriation of real-time market information,while at the same time ensuring that transformative uses can bemade of factual compilations.14 By contrast, H.R. 354, like the EUDatabase Directive, will provide database producers withsubstantial control over what transformative uses can be made ofdatabases, thus potentially undermining competitive conditions inthe database industry and discouraging innovative uses of thevery databases whose production it is designed to stimulate.Apparently aware of precisely that possibility, the EU specified inArticle 16(3) of the Database Directive that by the end of 2001,and every three years thereafter, a report is to be prepared toverify whether the application of the sui generis right “has led toabuse of a dominant position or other interference with free11. Id. § 1401(4). For a detailed discussion of the bill’s definition of a “relatedmarket,” see infra notes 159-62 and accompanying text.12. H.R. 1858 §§ 102, 201.13. For a discussion of the genesis of this common law tort, see infra notes 34-40and accompanying text.14. See generally Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)(discussing the importance of being able to make transformative uses of thecopyrighted works of others).