Copyright Only Creativity

The proposal could have severe consequences for free access to data.

Bad ideas never die; they just return in proposed legislation.

The latest bad idea to reappear is a plan in Congress to extend copyright protection to databases of compiled factual information. The idea behind this proposed legislation, the Database and Collections of Information Misappropriation Act, is this: If a company has taken the time to compile factual information—for example, the addresses of Catholic schools in an area or a compendium of legal decisions or government regulations—into a catalog or database, that company should be able to prevent others from copying this work. Theres just one thing: The information in these compilations is publicly available and isnt creative work, for which copyright protection is reserved. The proposed legislation could have severe consequences for the publics right to access information freely. This is especially true for government information to which the public is guaranteed access by law. The courts have previously ascertained this danger and shot down copyright protection for such noncreative, sweat-of-the-brow work.

Fortunately, theres an impressive array of opposition to these proposed bills, including such unlikely allies as consumer rights groups and the U.S. Chamber of Commerce. These groups understand that the proposed legislation threatens public rights and many legitimate businesses, including,, portals and publishers who provide useful data relative to a given business, and will provide no benefit to society.

The backers of these bills argue that without copyright protection there is no incentive to create these databases, ignoring the fact that they are already protected by contract law, which allows vendors to spell out in the purchase contract what can and cant be done with the information, and companies have been profitably creating compendiums of facts for hundreds of years without copyright protections. Probably their weakest argument is this: With the copyright protections, companies will be more willing to freely provide access to their collections of information. This is like the wolf saying that if the pigs would just come out of the house, he would be willing to become a vegetarian.

Failure to assert ownership of real property can lead to loss of ownership under the doctrine of prescriptive easement. If these bills become law, companies would have to demand at least consent to terms of use before giving access to data. Case law might even evolve in such a way that anyone who does not charge a use fee is construed to have waived ownership rights of the database.

The last time this ill-advised idea made its way to Congress, in H.R. 354, the Collections of Information Antipiracy Act of 1999, it died the death it deserved. eWEEK hopes that this time the bad idea will not even make it out of committee.

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