US contrasted to EUin re Copyright on Databases

David S. Wise

Indiana University

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An American View

• U.S. Constitution, I.8.8:

The Congress shall have Power…to Promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

• When did the USA join the Berne convention?• 1960?

• 1970?

• 1980?

• 1990?

• When did the EU issue its database protocol?• Why wasn’t it included in the 1996 Geneva WIPO draft treaty?

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Rights of Copyright

• Reproduction.

• Distribution.

• Derivative Works.

• Marketing, Lending.

• Performance, Exhibition.

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Why WIPO IP Treaties.

• Market for intellectual property is world-wide.

• Copyright holders need enforcement of Country-A copyright also in Country B.

• Successful treaties level the field between frequent customers and all comers

• Normalized protocols simplify and encourage world trade.

• World peace?

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(An American quirk: “Fair Use” defined.)

1. (Non-commercial) purpose and character of use (e.g. satire).

2. The nature of the copyrighted work.

3. The amount and substantiality of the portion relative to the copyrighted work as a whole.

4. The effect of the use upon the potential market for or value of the copyrighted work.

And then there’s “moral rights.”

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Library and Databases, personal opinion

• A database is a library.• Libraries are/will become databases.

– Carnegie libraries in USA: 100 years ago.– Local: Dunfirmline, Fife. George IV Bridge.– Will the public library survive?

• Sui generis is a flawed concept. – Perpetually self-renewing.– Yields copyrights on uncopyrighted material:

• Out-of-copyright art [Eldred.]• Uncopyrightable art [US and UK government work.]

– “Capitalization” of information.

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1996 EU two-tier database directive

• Databases manifesting intellectual creation receive full copyright protection (life+70 ---or 95 years).

• Data bases that represent capital investment without authorship receive 15-year protection. (Rolling?)

• Reciprocity issues are an on-going tension. For instance, France developed a payment machinery for CD/DVDs, but withheld it from countries that did not accord equivalent rights to French copyrights.

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Feist vs. Rural Telephone

• US Supreme Court, 1991.

• Facts are not copyrightable.

• Supercedes “sweat of the brow”

as a metric of original art [Brandeis].

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• A database cannot ipso-facto be protected.

• But (surely) its content can be (unless it cannot be).

• No market will receive a data base unless it includes provenance. “….bathroom walls” [Alan J. Perlis].

• That provenance may be copyrightable, and artful provenance will afford protection to a database.

A proposed alternative for EU and USA

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This group has a role to play.

• Let us present the EU parliament with an alternative.

• Save our developing technology from shackles that use IP law selfishly to protect traditional practice.– DMCA restrictions on DVDs and CDs.

– Misuse of our technology: Celine-Dion CD crypto died in a week.

• Use extant copyright law (which is understood) to protect art---curatorial art.

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Get organized

• U.S. Public Policy Committee of the Association for Computing Machinery.

• USacm. EUacm?

• We folks!

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ACM built a data base!!

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USacm has opposed database copyright.

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USacm has opposed database copyright.

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ACM SIGMOD

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Contacts for Europeans to pursue.

• U.S. Public Policy: www.acm.org/USacm

• Arnie Rosenthal, Mitre: arnie@mitre.org

• Who’s to publish our report? www.acm.org/SIGMOD

• One another.

• Me: dswise@acm.org