Vol 7 No 1 - Roger Williams University School of Law

industries. As electronic databases are navigated more efficientlythan printed publications, ensuring incentives for the creation offuture databases is of growing importance to a sound industrialpolicy. Recent technological developments have eroded thenatural lead-time that database developers have heretoforeenjoyed.As we have seen, two distinct legislative responses to Feistcan be found in H.R. 354 and H.R. 1858. Whereas H.R. 354 wouldaccord a database producer rights that are analogous (but notnecessarily “comparable”) to those mandated by the EU DatabaseDirective, thus recreating a limited form of the “sweat of the brow”protection that Feist laid to rest, H.R. 1858 would in effect “refederalize”the holding of International News, at least as it appliesto databases in interstate and foreign commerce, and provideprotection against two specific types of data piracy.The general approach (though not necessarily theenforcement mechanism) of H.R. 1858 is superior to H.R. 354because it prohibits wholesale competitive duplication ofdatabases, while ensuring access to and transformative uses offactual compilations. H.R. 354, by contrast, would extendprotection beyond a database producer’s primary market torelated markets, and would define related markets sufficientlybroadly that a database producer could control a wide range ofnon-competitive uses of data and reserve those potential marketsfor itself.Reincarnations of H.R. 1858 and H.R. 354 are likely to surfaceduring the present congressional session. The passage of eitherbill will have a significant impact on intellectual property lawsand policies in both the United States and worldwide. If theUnited States is perceived to be following the European Union’slead, by according a comparable sui generis right to databasedevelopers, then one would expect similar systems to beimplemented worldwide.However, there is no domestic policy justification for theUnited States to follow the EU’s lead. The economic case forcreating a sui generis right to prevent extraction and reutilizationof unoriginal database contents has never been satisfactorilyexplained by the EU itself. The EU Database Directive franklyseems designed to favor European database producers at theexpense of their customers and non-EU competitors, and topressure the rest of the world to create comparable protection.