Vol 7 No 1 - Roger Williams University School of Law
Vol 7 No 1 - Roger Williams University School of Law Vol 7 No 1 - Roger Williams University School of Law
the Paris Convention for the Protection of Industrial Property;thus, even if data rights fall outside the national treatmentprovisions of TRIPS and the Berne Convention, the sui generisdata right may be subject to the national treatment provisions ofthe Paris Convention.148 However, until this question is raisedand resolved, either in World Trade Organization (WTO) disputesettlement proceedings or elsewhere, the United States mustmake a unilateral determination as to what is in its nationalinterest.IV. UNITED STATES LEGISLATIVE EFFORTSA. History of Database Protection in the United StatesWithin ten weeks of the promulgation of the EU DatabaseDirective, the first legislation aimed at creating a sui generis rightin the United States, H.R. 3531, was proposed in the House ofRepresentatives.149 H.R. 3531 would have created a very strongproperty right with a twenty-five year term and potentially severecriminal sanctions for infringement.150 Opposition wasunexpectedly intense and the bill never reached the floor. H.R.3531’s sequel, H.R. 2652, responded to concerns from the researchand library communities by including limited fair useprovisions.151 This bill was passed by the House as part of theDigital Millennium Copyright Act on August 4, 1998; however, itwas subsequently stricken during negotiations with the Senate,and the DMCA passed shortly thereafter on October 28, 1998.152The Collections of Information Antipiracy Act, H.R. 354, asintroduced on January 19, 1999, would accord a databasedeveloper a broad right in factual compilations, subject not only toa specific limitation for certain non-profit educational, scientificand research uses, but also to a broader limitation for “reasonableuses” generally.153 The reasonableness of a particular use is to be148. See McManis, Taking TRIPS, supra note 16, at 258-59; Paul E. Geller,Intellectual Property in the Global Marketplace: Impact of TRIPS Dispute Settlements?,29 Int’l. Law. 99, 112 (1995).149. Database Investment and Intellectual Property Antipiracy Act of 1996, H.R.3531 §§ 6, 9, 104th Cong. (1996).150. See id.151. Collections of Information Antipiracy Act, H.R. 2652, 105th Cong. (1998).152. Digital Millenium Copyright Act, 17 U.S.C. § 1201 (Supp. IV 1998).153. H.R. 354 § 1403, 106th Cong. (1999).
evaluated by a multi-factor test that is somewhat reminiscent ofthe fair use privilege contained in section 107 of the United StatesCopyright Act of 1976.154 Notwithstanding the inclusion of thisbroadened fair use provision, opponents of H.R. 354 introduced analternative bill on May 19, 1999, the Consumer and InvestorAccess to Information Act, H.R. 1858, that based liability on atheory more analogous to the common law tort of “hot news”misappropriation.155B. Comparison of H.R. 354, H.R. 1858 and the EU DatabaseDirective1. Theories and Scope of ProtectionAs we have seen, H.R. 354 creates a sui generis right in thecontents of a database, somewhat analogous to that mandated bythe EU Database Directive, thus recreating a limited form of the“sweat of the brow” protection laid to rest in Feist.156 By contrast,H.R. 1858 protects databases by creating liability formisappropriation, thereby “re-federalizing” the United StatesSupreme Court’s holding in International News, at least asapplied to databases.157H.R. 354 prohibits the extraction or making available toothers all or a substantial part of a collection of informationgathered, organized or maintained by another person through theinvestment of substantial resources, that causes material harm tothe primary or a related market of that other person or of asuccessor in interest.158 The key to understanding the scope ofthis property right, and how it differs from a right based on atheory of unfair competition, is in the definitions of “primary” and“related” markets.A primary market is any market in which a product or servicethat incorporates a collection of information is offered and inwhich a person claiming protection with respect to that collectionof information derives or reasonably expects to derive revenue—154. 17 U.S.C. § 107 (1994).155. H.R. 1858 § 103, 106th Cong. (1999).156. See supra note 71 and accompanying text.157. See supra note 71 and accompanying text.158. H.R. 354 § 1402, 106th Cong. (1999).
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the Paris Convention for the Protection <strong>of</strong> Industrial Property;thus, even if data rights fall outside the national treatmentprovisions <strong>of</strong> TRIPS and the Berne Convention, the sui generisdata right may be subject to the national treatment provisions <strong>of</strong>the Paris Convention.148 However, until this question is raisedand resolved, either in World Trade Organization (WTO) disputesettlement proceedings or elsewhere, the United States mustmake a unilateral determination as to what is in its nationalinterest.IV. UNITED STATES LEGISLATIVE EFFORTSA. History <strong>of</strong> Database Protection in the United StatesWithin ten weeks <strong>of</strong> the promulgation <strong>of</strong> the EU DatabaseDirective, the first legislation aimed at creating a sui generis rightin the United States, H.R. 3531, was proposed in the House <strong>of</strong>Representatives.149 H.R. 3531 would have created a very strongproperty right with a twenty-five year term and potentially severecriminal sanctions for infringement.150 Opposition wasunexpectedly intense and the bill never reached the floor. H.R.3531’s sequel, H.R. 2652, responded to concerns from the researchand library communities by including limited fair useprovisions.151 This bill was passed by the House as part <strong>of</strong> theDigital Millennium Copyright Act on August 4, 1998; however, itwas subsequently stricken during negotiations with the Senate,and the DMCA passed shortly thereafter on October 28, 1998.152The Collections <strong>of</strong> Information Antipiracy Act, H.R. 354, asintroduced on January 19, 1999, would accord a databasedeveloper a broad right in factual compilations, subject not only toa specific limitation for certain non-pr<strong>of</strong>it educational, scientificand research uses, but also to a broader limitation for “reasonableuses” generally.153 The reasonableness <strong>of</strong> a particular use is to be148. See McManis, Taking TRIPS, supra note 16, at 258-59; Paul E. Geller,Intellectual Property in the Global Marketplace: Impact <strong>of</strong> TRIPS Dispute Settlements?,29 Int’l. <strong>Law</strong>. 99, 112 (1995).149. Database Investment and Intellectual Property Antipiracy Act <strong>of</strong> 1996, H.R.3531 §§ 6, 9, 104th Cong. (1996).150. See id.151. Collections <strong>of</strong> Information Antipiracy Act, H.R. 2652, 105th Cong. (1998).152. Digital Millenium Copyright Act, 17 U.S.C. § 1201 (Supp. IV 1998).153. H.R. 354 § 1403, 106th Cong. (1999).
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