April 28, 1998 HyperLaw, Inc.®
Database Protection Proposals Page
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HR 2652 Information -- See Witness Statements Below.
PDF Version of Markup of HR 2652 of March 16, 1998 As of April 28, 1998, this markup had yet to appear on Thomas.
Witness statments at Hearing of February 12, 1998.
- Statement Of The Honorable Howard Coble, Chairman, Subcommittee On Courts And Intellectual Property
- Robert E. Aber, Senior Vice President and General Counsel, The Nasdaq Stock Market, Inc., On Behalf of the Information Industries Association.For the bill.
- Richard F. Corlin, M.D, Amercan Medical Association. For the bill.
- Jonathan Band,, On Behalf Of The Online Banking Association Against Bill.
- Tim D. Casey.Information Technology Association Of America Against Bill.
- Jane C. Ginsburg, Professor Columbia University School of LawFor bill.
- William Hammack, President, The SunShine Pages, On Behalf of the Association of Directory Publishers Against.
October 31, 1997. HYPERLAW LETTER TO CONGRESSMAN COBLE RE H.R. 2652, October 31, 1997. HyperLaw responds to Conressman Coble's statments and demands the Subcommittee hold hearings on public domain citations and why the United States District Courts will not make their electronic opinions available to the public.
October 31, 1997. HyperLaw Posting to CNI-COPYRIGHT forum re Coalition Against Database Piracy, October 30, 1997.
October 30, 1997. BNA Management Briefing, October 27, 1997 contained a report on the hearing, DATABASE ANTI-PIRACY MEASURE CRITICIZED AS SWEETHEART LEGISLATION FOR LAW PUBLIHSERS and devoted 7 paragraphs to the criticism by Coble and Frank. Coble is quoted as saying that the "raison d'etre is to protect information in the information age" and said that he took "umbrage" to Sugarman's statement. HyperLaw stands by its comments. Two of the three witnesses testifying for the bill did so on behalf of West/Thomson and Reed-Elsevier: Tyson who was a paid consultant for these two companies, and the Coalition Against Database Piracy, a coaltion established by these two companies. HyperLaw and indeed the public takes umbrage that the Subcommittee has never looked into why the federal district courts have not organized method to disseminate their opinions, why these courts withhold the electronic versions from the public, and why the Judicial Conference refuses to adopt a public domain citation at the same time the the Subcommittee holds hearings on legislation to provide copyright like protection to a private company that publishes these court opinions.
(Written Statements filed with Subcommitte, October 23, 1997.
- Honorable Marybeth Peters, Register
U.S. Copyright Office. Pro. See
U.S. Copyright Office, Report on Legal Protection for Databases (August 1997) U.S. Copyright Office, Report on Legal Protection for Databases (August 1997). The report was prepared for Senator Hatch -- released in August, the Copryight Office did not circulate copies for comment which is highly unusual. At the time the report was being prepared, patent czar Bruce Lehman was attempting to have the Copyright Office transferred to the Patent Office.
- Paul Warren, Executive Publisher, Warren Publishing, Incorporated. Pro.
[HyperLaw note. Warrent Testified for the Coalition Against Database Piracy, a Thomson/Information Industries Association funded coaltion, and discussed his Eleventh Circuit case against Microdos.] See Warren Publishing, Inc. v. Microdos Data Corp.
- Laura D'Andrea Tyson, Former National Economic Advisor to the President and Former Chair
of the White House Counsel of Economic Advisors, Consultant to Reed-Elsevier, Inc. and The Thomson Corporation. Pro. A study by Tyson and funded by Thomson and Reed Elsevier, Laura D'Andrea Tyson and Edward F. Sherry, Statutory Protection For Databases. may be found at the Information Industries Association site Tyson/Sherry study Reed Elsevier recently filed on September 29, 1997, an Amicus Brief in HyperLaw v. West supporting West claims to the copyright of the text of court opinions and cited the Copyright Office study.
- James G. Neal, Sheridan Director of the Milton S. Eisenhower Library, Johns Hopkins University. Against.
- Dr. William A. Wulf, President, National Academy of Engineering
on behalf of the National Research Council. Against.
- Professor Jerome A. Reichman, Visiting Professor, University of Michigan Law School, Professor of Law, Vanderbilt University, Senior Advisor to the National Research Council. Against.
- Dr. Robert S. Ledley, Director of Medical Computing, Biophysics Division, Georgetown University Medical Center. Against
Statements Filed With Committee Separately.
October 23, 1997. Hyperlaw comments re hearing. A hearing was held on October 23, 1997 by The Subcommittee On Courts And Intellectual Property, House Committee On The Judiciary, Concerning H.R 2652 Collections Of Information Antipiracy Act. HyperLaw made available at the hearing a 13 page document containing observations about the database protection bill. A member of the subcommittee staff provided a copy to the Chairman who read the first three paragraphs into the record and said that the statements were completely incorrect, and that the bill was not on a fast track. Apparently there were a series of "miscommunications" that led us and many others in Washington to conclude that the bill was on a fast track, especially because of the short period between the introduction of the bill and the hearing. We are happy to hear that further hearings will be held in January. As to the other statements in the first three paragraphs, we stand by their accuracy and note that the Chairman did not identify which of the other statements were inaccurate. Of the three witnesses who supported the bill, one was Laura Tyson who was there on behalf of Thomson and Reed Elsevier. A second witness testified on behalf of the so called Coalition Against Database Piracy. Thomson and Reed Elsevier were two of the founding members and one could conclude formed the Coalition. Enough said.
As West gears up for its next database protection assault, it is worth reading this 1995 story on its last Saturday night attempt.
WEST: A STUDY IN SPECIAL INTEREST LOBBYING , The Hill, February 22, 1995, BY Doug Obey and Albert Eisele. Full length article discussing defeat of West promoted bill to obtain database protection legislation. The 1997 Coble bill is just another retry.
End of 1997 Bill Section.
On the Net and the liberation of information that "wants" to be free A call for action by the United Nations, Universities, researchers, and development agencies, with reference primarily to international trade law This white paper discusses the need for access to the case law of countries that are participatory nations to the International Sale of Goods treaty and access to other law. It is notable because the database protection laws of the country of the author, who is from Norway, would mitigate against the type of access urged by the author.
HyperLaw Letter to Patent Office Opposing Database Protection Treaty - November 21, 1996"
"HyperLaw Comments: DATABASE PROTECTION -- TILTING THE COPYRIGHT BALANCE - II, November 18, 1996 revised November 21, 1996"
Magill EEC Case Database/Compulsory Licensing
A discussion of the Article 86 of the EEC Treaty, which was applied in the Magill case is found in the following article:
Lang, John Temple, Defining Legitimate Competition: Companies' Duties To Supply Competitors, And Access To Essential Facilities Note: 182 K
Excerpts from Lang, John Temple, Defining Legitimate Competition: Companies' Duties To Supply Competitors, And Access To Essential Facilities Note: 50K
H.R. 2674. Intellectual Property Antitrust Protection Act of 1995 - November 25, 1996
Under H.R. 2674, a court in the United States could not do what the EEC Court did in Magill. In other words, while Moorhead was proposing the Database Protection Act, at the same time Representative Moorhead was proposing a bill to take away the remedies available in European law for abuse of the copyright monopoly.
"Comments of Rep. Hyde (on behalf of Rep. Moorhead and others) on Introduction of H.R. 2674. Intellectual Property Antitrust Protection Act of 1995:
- Our bill would eliminate a court-created presumption that market power is always present in a technical antitrust sense when a product protected by an intellectual property right is sold, licensed, or otherwise transferred. The market power presumption is wrong because it is based on false assumptions. Because there are often substitutes for products covered by intellectual property rights or there is no demand for the protected product, an intellectual property right does not automatically confer the power to determine the overall market price of a product or the power to exclude competitors from the marketplace.
- The recent antitrust guidelines on the licensing of intellectual property--issued jointly by the antitrust enforcement agencies, the Department of Justice and the Federal Trade Commission--acknowledge that the court-created presumption is wrong. The guidelines state that the enforcement agencies `will not presume that a patent, copyright, or trade secret necessarily confers market power upon its owner. Although the intellectual property right confers the power to exclude with respect to the specific product, process, or work in question, there will often be sufficient actual or potential close substitutes for such product, process, or work to prevent the exercise of market power.' Antitrust Guidelines for the Licensing of Intellectual Property dated April 6, 1995 at 4 (emphasis in original).
UNITED STATES DEPARTMENT OF JUSTICE SUPPORTS DATABASE PROTECTION TO PROTECT WEST STAR PAGINATION COPYRIGHTS
HyperLaw's November 18, 1996 Paper refers to the statements made by the Department of Justice in its Amicus Brief opposing West copyrights in citations. The following is taken from HyperLaw's September 3, 1996 letter to the Department of Justice opposing its proposed Consent Decree in US v. Thomson and West.
To make matters worse, the DOJ New York Brief suggests that the Antitrust Division is playing a double game here. First, the Antitrust Division has at no time indicated its desire to file a brief in support of HyperLaw's motion that will permit rival publishers to copy the text of court opinions from West reporters. Second, as anticipated in HyperLaw's June letters which referred to West efforts to end-run the copyright laws by lobbying for database protection legislation, DOJ states as follows in its brief:
"Copyright is not the only conceivable legal regime for protecting the fruits of industrious collection. The Delegation of the United States of American recently proposed to the World Intellectual Property Organization an international treaty that would provide to the "maker" of certain databases the exclusive right to extract all or a substantial part of the contents, without regard to copyrightability. World Intellectual Property Organization, Preparatory Committee of the Proposed Diplomatic Conference (December 1966) on Certain Sui Generis Protection of Databases, CRNR/PM/7 (May 20, 1996). Legislation providing for such protection has been introduced in Congress. See H.R. 3531, 104th Cont., 2d Sess. (1996).
The Department of Justice Amicus Brief Page 6, Note 4
The Department of Justice Guidelines for Intellectual Property which are generally hostile to any type of Magill compulsory license may be found on the DOJ web site.
Antitrust Intellectual Property Guidelines -- April 6, 1995
These guideline by an amazing coincidence were released the same day the Magill decision was rendered by the EEC!!!
Washington Post 11/3/96 Database Protection Editorial Excerpts
NRC REPORT REFUTES ASSUMPTIONS IN INTELLECTUAL PROPERTY TREATY
NRC REPORT REFUTES ASSUMPTIONS IN INTELLECTUAL PROPERTY TREATY
The National Research Council is taking the unusual step of releasing
a portion of its upcoming report on electronic copyright concerns,
called "Bits of Power," in an effort to counter government forces
advocating the treaty on database copyright drafted by the World
Intellectual Property Organization. Debate on the draft treaty is
scheduled to begin on December 2 in Geneva. The report's findings
indicate that market forces are not capable of protecting the public
good associated with open access for scientists and educators. The
full report, which has been two years in the making, will be released
Nov. 22. Researchers have argued that implementation of the draft
treaty, as it's now written, could make it more difficult and costly
to access data on everything from the human genome to global weather
patterns. (Science 15 Nov 96 p1074)
Other Sites With Database Protection Information
Public Domain -- Database Protection Page****
Stanford Database Protection Page****
Notice of Request for Comments
Digital Future Coalition proposed revisions
More Digital Future Coaliton responses
Letter to Mr Mickey Kantor, Secretary of Commerce
Database Extractor Rights Taken Away
State Department Working Group Page