How the Current Congressional Database Protection Bill Would Go Beyond Current Law,
and Why It is Unconstitutional and Misguided

By BRANDY KARL
Wednesday, Feb. 11, 2004

Recently, a bill seeking to establish special legal protection for databases was reported to the House floor for consideration. The bill, HR 3261, is called the Database and Collections of Information Misappropriation Act (DCIMA).

If enacted into law, the DCIMA would create civil liability for anyone who, without authorization, makes available in commerce to others a substantial part of the information contained in another person's qualifying database. Qualifying databases must be "generated, gathered, or maintained through a substantial expenditure of financial resources or time."

Copyright law generally protects original works of creative expression -- so it protects only those databases whose selection, or arrangement, is creative or original in some way. Merely compiling data is not enough to earn copyright protection.

But this bill, if enacted, would alter this fundamental principle. Even databases that are merely collections of facts would be protected. The DCIMA would not extend protection to such databases because they represent original, creative expression. Rather, it would protect them because they come from the "sweat of the brow" (or, more realistically, the sweat of the wallet) of their creator.

This theory inverts the whole idea underlying copyright protection. For this reason, the DCIMA is unconstitutional. Moreover, from a policy perspective, the DCIMA would also be disastrous.

Why Copyright Law Does Not Fully Protect All Databases

The current version of the Copyright Act protects "compilations" -- and thus, in theory, could protect databases. But it defines a "compilation" as a "work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship." (Emphasis added.)

In 1991, in Feist Publications, Inc. v. Rural Telephone Service Co., the Supreme Court was called upon to interpret this provision. There, a local telephone company's name-and-number directory was copied by the publisher of a name-and-number directory for a larger geographical area. (Having been refused a license, the publisher simply took the information, without permission or compensation.) The local telephone company sued -- but it lost.

In ruling against the local phone company, the Court made clear that plain effort does not constitute the originality required by the Constitution's Copyright Clause. Rather, directories and databases must exhibit "some minimal degree of creativity" in order to qualify for copyright protection. Taking public domain information -- such as listed telephone numbers and addresses -- and assembling it in alphabetical order, the Court held, was hardly creative at all.

But what if the local directory had qualified for copyright protection? Would the publishers of the area-wide directory have violated copyright when they took their information straight from the local directory? Significantly, the Court said no. It explained that, because copyright protects only expression -- not ideas or facts

-- others remain free to copy facts that are included in compilations or databases, even if the resulting work results in a competing product.

A truly original arrangement or selection of facts would fall under the copyright law, the Court noted. But the facts themselves never can. Copyright encourages the free flow of information and advancement of knowledge by encouraging, not limiting, the rights of the public to use and build upon ideas and facts.

An Unconstitutional Attempt to Copyright Uncopyrightable Material

The DCIMA, as described above, takes an approach that is exactly opposite to that of the Constitution's Copyright Clause. It seeks to protect even those databases that lack any minimal degree of creativity -- and it thus seeks to protect the facts within those databases, not simply the way those facts are expressed.

In so doing, the DCIMA violates the Constitution. The Copyright Clause made two choices: A choice to protect original expression, and a choice not to protect facts or ideas. The DCIMA contradicts that second choice -- and thus, it flouts the Constitution.

Put another way, the Framers drew a line between copyrightable and uncopyrightable material. Yet the DCIMA would cross that line.

Proponents of the bill claim that, like trademarks, databases simply do not fall under the Copyright Clause at all. They contend that they are instead governed by the Commerce Clause -- as so many other products are.

But that is unconvincing. Remember, in Feist the Supreme Court made clear that some aspects of some databases do fall under the Copyright Clause: A database's original arrangement or selection of data can be copyrighted. Consequently, it is simply not the case that databases have nothing to do with the Copyright Clause -- and fall under the Commerce Clause instead.

Rather, it is the case that the Copyright Clause protects some aspects of some databases, and leaves their other aspects -- their facts and ideas -- out in the public domain. In this sense, it treats databases exactly as it does all other writings. Databases do fall within the Copyright Clause -- and that means that they must be protected to the extent -- and only to the extent -- as other writings.

For all these reasons, the DCIMA is patently unconstitutional. In addition, from a policy perspective, it is a mistake -- and the way it is currently drafted only worsens that mistake.

The Problem with the Specific Provisions of DCIMA

Not only is the DCIMA misguided, it is also fatally vague, in several respects.

First, the DCIMA imposes civil liability upon anyone who copies a "quantitatively substantial" portion of a database - or a subset thereof. But what's a "quantitatively substantial" portion? Can you copy five percent of a database? Ten percent? Thirty percent? Aren't some guidelines appropriate?

Second, the DCIMA carves out a "news reporting" exception -- but then it carves out a vague exception to that exception. Specifically, it says that the facts within a database would be allowed for the purposes of news reporting, dissemination, and comment. But then it says that liability could still apply if "the information is time sensitive and has been gathered by a news reporting entity, and making available in commerce the information is part of a consistent pattern engaged in for the purpose of direct competition."

These terms lead to still more vagueness. First, when is information "time sensitive" -- and when does the information stop being "time sensitive"? Is it one hour after it becomes public? One day after? One week after?

Consider this hypothetical: If one news site compiles a database of information on the soldiers who were recent casualties in Iraq, shouldn't everyone have free access to that directory as soon as possible, in as many venues as possible? The facts about these soldiers do not belong to the database compiler -- but the law would treat them as if they did.

Second, must a "news reporting entity" be a major media entity? What about a newsy blog -- or the Drudge Report?

Third, and finally, when does "direct competition" exist? Does a local newspaper's site directly compete with the New York Times with respect to a local story the Times was the first to break? Does the Drudge Report directly or indirectly compete with the news sites to which it links -- or does it not compete with them at all, but rather promote them, and their content?

All these questions are left unanswered by the DCIMA. And all these ambiguities will predictably hurt the dissemination of news -- including facts that are of great importance for the public to know.

Why the DCIMA Should Fail

If Congress is wise, it will not enact the DCIMA into law. A free society does not hoard its facts and ideas -- but that is just what DCIMA protects and encourages.

If Congress is not wise, and goes forward with the DCIMA, the federal courts will ultimately examine it to determine if the law runs afoul of the Copyright Clause. They should hold that it does. Indeed, one could hardly imagine a more frontal assault on the Clause's basic distinctions, between idea and expression, and between creative imagination and fact.


Brandy Karl is a third-year student at Boston University School of Law.

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