Vol 7 No 1 - Roger Williams University School of Law

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shall be null and void.65 Member states may (but are not requiredto) create exceptions, allowing lawful users of a database madeavailable to the public to extract or re-utilize a substantial part ofits contents for three limited purposes.66 The term of protection isfifteen years from the first day of the next calendar year followingcompletion of the database, or if it is made available to the public,fifteen years from the first day of the next calendar year followingpublication.67 Any substantial change in the contents of thedatabase that would result in the database being considered asubstantially new investment would be entitled to its own term ofprotection.68 Finally, in stating that protection will be accorded todatabases whose makers are not nationals, habitual residents, orlegal persons established in a member state only if the country oforigin of the database offers “comparable protection” to databasesproduced by nationals, habitual residents or legal personsestablished in a member country of the European Community, theDirective seems to place those segments of the U.S. databaseindustry that do not have an established presence in the EU at apotentially serious competitive disadvantage in the EU.69Not surprisingly, promulgation of the EU Database Directiveimmediately generated demands for sui generis databaseprotection in the United States and stimulated a series ofproposed legislative responses. Thus far, however, the only resulthas been a legislative stalemate. As we have seen, the two billsmost recently considered by the United States Congress—H.R.354 and H.R. 1858—reflect two competing approaches to suigeneris database protection. H.R. 354 would accord a databasedeveloper a limited-term right,70 somewhat analogous to that65. Id. at art. 8.66. Id. at art. 9. Lawful users of a database made available to the public mayextract or re-utilize as substantial part of its contents: (a) in the case of extraction forprivate purposes of the contents of a non-electronic database; (b) in the case ofextraction for the purposes of illustration for teaching or scientific research, as long asthe source is indicated and to the extent justified by the non-commercial purpose to beachieved; and (c) in the case of extraction and/or re-utilization for the purposes ofpublic security or an administrative or judicial purpose. Id.67. Id. at art. 10.68. Id.69. See id. at art 11(3) and recital 56; but see infra note 184 and accompanyingtext.70. H.R. 354 § 1409(c), 106th Cong. (1999). For a detailed discussion of theinteresting way H.R. 354 manages to create a limited term of protection and yetmaintain its credentials as an antipiracy act see infra notes 168-71 and accompanying
created by the EU Database Directive, to prevent non-competingas well as competing uses of substantial portions of a database,thus recreating a limited form of the “sweat of the brow”protection laid to rest in Feist.71 By contrast, H.R. 1858 wouldprovide a narrower form of misappropriation protection byprohibiting only (1) the sale or distribution to the public of acompeting duplicate of a database collected and organized byanother and (2) misappropriation of real-time market information,thus effectively “re-federalizing” the holding in InternationalNews, at least as applied to databases.Other countries are closely following the debate in the UnitedStates over database protection. Japan may have opted in favor ofan unfair competition approach to database protection when itamended its Unfair Competition Law in 1993 to prohibit, for alimited three-year term of protection, the slavish imitation(referred to in Japanese as “dead copies”) of another’s goods.72While the subject of slavish copying under Japan’s UnfairCompetition Law can only be products, not services, computersoftware and databases apparently qualify as products whenmarketed on floppy discs or CDs, and the law may even extend tovirtual goods.73 Australia is said to be “walking a fine linebetween, on the one hand, supporting improvement of copyrightprotection against new uses in the digital environment and, on theother, avoiding excessive copyright protection resulting in denialof reasonable access to works and/or increased adverse balance oftrade in copyright royalties.”74 Korea is also considering howdatabases ought to be protected.75 Accordingly, the choice of oneU.S. bill over the other will be extremely influential intext.71. H.R. 354, § 1409(d).72. See Unfair Competition Act [Japan], Law No. 47/1993, § 2(3) (May 19, 1993);see generally Christopher Heath, The System of Unfair Competition Prevention inJapan 120-40 (2001) (discussing Japan’s approach to combating unfair competition).73. See Heath, supra note 72, at 130-31.74. Matilda in Cyberspace, Berne Protocol–Latest Development (July 9, 1996) (emailfrom Jaime Wodetski, commenting on database protection proposals prepared forthe benefit of the Libraries Copyright Committee), athttp://www.anu.edu.au/Matilda/issues/199607/715.source.html (last visited Apr. 11,2001).75. See Sang Jo Jong & Junu Park, Property versus Misappropriation: LegalProtection for Databases in Korea, 8 Wash. U. J.L. & Pol’y (forthcoming) (2002).75. See Sang Jo Jong & Junu Park, Property versus Misappropriation: LegalProtection for Databases in Korea, 8 Wash. U. J.L. & Pol’y (forthcoming) (2002).
Page 3: ROGER WILLIAMS UNIVERSITYLAW REVIEW
Page 7 and 8: ROGER WILLIAMS UNIVERSITYSCHOOL OF
Page 9: Identification StatementThe Roger W
Page 12 and 13: contract exclusion or disclaimer of
Page 14 and 15: and other laws of countries in whic
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Page 18 and 19: Indeed, the quotation contains the
Page 20 and 21: suggestive of a bill designed merel
Page 22 and 23: United States ought to adopt in lig
Page 24 and 25: the Supreme Court to reiterate in F
Page 26 and 27: United States Supreme Court quoted
Page 28 and 29: copying of “a work protected unde
Page 32 and 33: determining the fate of database pr
Page 34 and 35: The compilation of a database requi
Page 36 and 37: management information, including c
Page 38 and 39: one congressional witness noted:
Page 40 and 41: that were made after the initial te
Page 42 and 43: preferred language of many business
Page 44 and 45: the sui generis right mainly serves
Page 46 and 47: the Paris Convention for the Protec
Page 48 and 49: directly or indirectly.159 In other
Page 50 and 51: of resources that qualifies that po
Page 52 and 53: wish to encourage private lawsuits,
Page 54 and 55: contract.”185 While section 1405(
Page 56 and 57: The Directive will inevitably drive
Page 58 and 59: the process through which digital p
Page 60 and 61: the United States or the trade and
Page 62 and 63: patent law is the utilitarian ethic
Page 64 and 65: a work to be publicly identified as
Page 66 and 67: the United States, the power of the
Page 68 and 69: Theory one proposes to reward the a
Page 70 and 71: of intellectual property rights mus
Page 72 and 73: only such as are original, and are
Page 74 and 75: emedies set forth in section 1406.T
Page 76 and 77: eproduced, though there be no ingen
Page 78 and 79: the same, or substantially the same
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with respect to “patents of inven
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Because, in part of the joint reaso
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even by the plaintiffs today.86The
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statute: the “Limited Times” re
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head of power. It is not clear whet
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elationship of power between the Co
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history dealing with either provisi
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the parameters of the propertizatio
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the legislative power contained in
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negative pregnant that suggests tha
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scope of the Commerce Clause in the
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gave incentive for people to expres
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ejected this purported distinction
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talk, communicate or consume inform
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frameworks that will allow diversit
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that a monopolist should not seek t
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motivating force.While antitrust or
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unjustifiable anti-competitive cond
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his refusal to sell or license his
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defense and exploitation of the cop
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the information age there have been
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In response to Intel’s argument t
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Court of First Instance in concludi
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to oust competitors, there was noth
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as a digital property owner, which
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anti-competitive use of monopoly po
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certain circumstances, exempted fro
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for circumventing a technological p
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DMCA creates an exclusive right in
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circumventing a TPM in order to loo
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“staple article of commerce” do
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commerce.”320 Is innovation stifl
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anner advertisement company DoubleC
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the subject. Demographic informatio
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important to know whether a contrac
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information rights and legislated c
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this value is difficult to apportio
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Association (WIPO) will administer
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the new environment.For example, th
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implemented. As this section will h
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ight. First sale is an important di
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sign a hard copy contract containin
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to digital property. As well, free
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desirable to sellers and buyers ali
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ural and remote areas, where access
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as “high-speed telecommunications
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decrease innovation.30 On the other
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could be called a trespass, since a
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inform what permissible access and
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Universal Music Group uses software
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Taking UCITA on the Road: WhatLesso
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the debate has centered on whether
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It is against this background that
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similarities as well as differences
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as well, such as the American Bar A
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American Law Institute refused to p
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enactment of the draft. This led to
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such application.35 To the extent,
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transactions involving goods other
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quite controversial.49 As the histo
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provisions of Article 2 (based in p
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form license of information.63 Alth
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principles articulated in several i
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to by industry groups, with the res
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powers going well beyond the UNIDRO
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Contracts deals with unfair terms i
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worth a thousand words. Picture a d
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types of provisions being sought by
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law is a complex one.125 Although s
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the intellectual property balance o
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Other Substantive IssuesThere are,
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law,153 and many of UCITA’s provi
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nature of law-making both domestica
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Transactions Act).
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acts of copyright infringement.7 Un
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these rights.I. ISP LIABILITY FOR T
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Cubby, the court in Stratton Oakmon
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liability for third-party content.5
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network and removed the edition of
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subscribers’ conversations.84 Fur
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holder.92 Contributory liability ap
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and Klemesrud on the counts of dire
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eport, the White Paper on Intellect
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imposed ISP liability both in insta
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any infringing material either upon
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provider liability, the European Co
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of a defamatory statement.While saf
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defamation.184 One case that illust
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material that appears questionable
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FBI’s Carnivore: Is the Governmen
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and the legal limits of government
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II. CONSTITUTIONAL ANALYSISA. Const
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application developed in Katz v. Un
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Amendment protections.50Substantial
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communicating over the Internet pos
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court will likely, as it has often
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unconstitutional.81 Although CALEA
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data attributable to the target sus
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FBI facility for subsequent examina
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EPCA Section 2518 provides that upo
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The FBI has stated that its use of
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provision,143 but judging from the
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