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Vol. 22, No. 4/Summer 2000

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Legislative Proposals Affecting Databases
By Heidi Yacker


At the federal level:

The ongoing changes in database production have brought increased attention to the issue of information protection. Copyright law protects "creative authorship" -- original material created by an author -- and this protection extends to databases that include modest amounts of original material. At present, federal law does not always protect non-creative databases such as lists and directories. The courts have also not afforded protections to these databases. In a recent decision (Feist Publications v. Rural Telephone Service Co.), the Supreme Court held that downloading and distributing the white pages of a telephone directory is a permitted activity not subject to copyright protection. The Court rejected the "sweat of the brow" argument that the data took substantial time and money to compile.

Non-creative database producers argue that they need protection from this "piracy" of their work. Vast technological improvements have made copying information much easier. For example, in 1991 it took 6 months to download an average database; it now takes 2 minutes. Producers feel they need protections to encourage database development and to close the gaps created by the courts. They also argue that the European Union, which provides protection for non-creative European databases, will extend this protection to U.S. databases only if a comparable law is passed here.

Some recognize the importance of protections but don't want them to be overly restrictive. These include compilers -- many of which are small businesses -- of "transformative" of "value-added" databases that take information from one database and combine it with other material to form a new database. For example, a database compiler might extract information from a directory of diseases that is marketed to doctors and create a directory of children's diseases to market to parents. Overly restrictive legislation could also have a negative impact on research activities and could contribute to increased costs in accessing databases.

Two bills have been introduced and reported out of committee that would prohibit certain database copying, provided the originator expended industrious effort and a substantial investment in money, time or other resources. SLA supports H.R. 1858, the Consumer and Investor Access to Information Act. Although the bill prohibits duplication, sale, or distribution of a database that is substantially the same as another and prohibits competition with a pre-existing database if doing so significantly threatens the originator's market, its prohibitions are not so broad as to discourage the development of value-added databases. The other bill, H.R. 354, the Collections of Information Antipiracy Act, is overly broad and vague in its prohibitions, leaving the question of the legitimacy of value-added activities to be decided by the courts on a case-by-case basis. SLA is opposed to H.R. 354.


At the state level:

The Uniform Computer Information Transaction Act, UCITA, is legislation being considered by several state legislatures. Its aim is to strengthen licenses on software and digital information, including "shrinkwrap" (included in packaging of new software) and "click-on" (on-screen agreements) licenses. Opponents, including consumer advocates, software development organizations, and library associations such as SLA, say UCITA would permit the enforcement of licenses that contain language in violation of consumer protection laws. UCITA would also allow companies to spy on individuals to verify that they are complying with the terms of the license, and reviewers could be prohibited from sharing information about software flaws. It would legitimize licenses that relieve vendors of the responsibility for "buggy" software. Software industry proponents argue that UCITA will lead to needed uniformity among the states regarding software licensing and that stronger, enforceable contracts will attract more e-commerce to states. Currently, Virginia is the only state to have passed a version of UCITA. Bills are pending in Maryland, Delaware, and New Jersey.


Heidi Yacker, a librarian at Congressional Research Service in Washington, D.C., is the Government Relations Chair. Her email is hyacker@crs.loc.gov.


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