Intellectual Property Protection of Databases:
Submission to Industry Canada,1998-01-13
Background
The mission of CARL/ABRC is to provide leadership to the Canadian academic research library community through enhancing scholarly communication and through assisting its members to provide comprehensive support for postgraduate study and research.
We believe it is imperative that the open exchange of scientific and other research information is not constrained by commercial interests through legislation to protect investment in database compilation where the contents are non-copyrightable or in the public domain. Such legislation would effectively destroy the delicate balance between the rights of creators and the wider public interest, notably in the free exchange of scholarly and scientific information.
The economic realities
Research contributes directly to Canada's economic health. It also has a direct effect upon the employment market. "University research is responsible for the production of $76 billion worth of goods and services, fully 12 per cent of Canadian GDP, as well as sustaining more than one million jobs in Canada." (Quoted in Sustaining Canada as an Innovative Society: an Action Agenda. Submission by AUCC and others to the Government of Canada, Sept.1997).
Much research is publicly funded. A recent study commissioned by the National Science Foundation in the U.S. revealed that 73 per cent of the papers cited in US patents were the result of publicly-funded science: in other words, publicly-funded science is the driving force behind innovation and high-tech industries (passim, p.2).
If researchers, as authors, could be induced to retain copyright of their work instead of assigning it to commercial publishers this would be of even greater value to publicly-funded research in Canada. This is because of the disturbing history of excessive rates for journal subscriptions charged by commercial publishers - a reality which continues unchecked - and the trend to monopoly in database ownership in this area. The work of Industry Canada in exploring other avenues of electronic distribution for scholarly journals is noted in this connection.
Policy models: Canada
The CARL/ABRC Position Statement on Copyright (1996) maintains the principle of technological neutrality in copyright matters. Consequently it is the Association's view that a new form of intellectual property law is not needed to protect intellectual property rights in databases.
This position is echoed in, for example, Recommendation 6.2 of the Information Highway Advisory Committee (IHAC) in The Challenge of the Information Highway (1995): "The current categories of works contained in the Copyright Act sufficiently identify works produced and used in a digital environment and should not be amended or eliminated."
On Oct 27 1997 the Federal Court of Appeal upheld unanimously the Trial Division's decision in the Tele- Direct (Publications) Inc. v. American Business Information Inc. Copyright protection was denied to the plaintiff's Yellow Pages/Pages Jaunes on the basis that insufficient skill, judgment and labour was involved in the overall arrangement of the compiled information and its organization according to headings.
Compilations are protected under current Canadian legislation with respect to their selection and arrangement. No compelling reason has been advanced to add sui generis protection to the copyright and other protections already available under Canadian law .
Policy models: international
The European Directive, to be implemented by all members states by January 1, 1998 grants copyright protection for database structure and sui generis protection for contents.
There is no valid reason for Canada or other nations to follow this Directive under the colour of reciprocity or national treatment. The 1996 WIPO Copyright Treaty (Article 10) specifically allows for Limitations and Exceptions. "Contracting parties may, in their national legislation, provide for limitations of, or exceptions to the rights granted to authors of literary and artistic works under this Treaty in certain special cases that do not conflict with a moral exploitation of the work and do not unreasonably prejudice the legitimate interests of the author."
WIPO is not expected to release its "analytic document" of the principal issues relating to database protection until September 1998. This allows ample time for Canada to discuss outstanding issues, hopefully within the context of Phase III Copyright reform legislation.
In the meantime, in the United States, a similar debate may be anticipated over the future of H.R. 2652, the "Collections of Information Antipiracy Act."
Conclusion
In the future much information generated is likely to be collected into a database and be controlled digitally. What was once a fact, not capable of copyright protection will become an item of data, and will be contained in a database and hence potentially capable of protection under copyright. What was once a literary work in the public domain can be collected by an enterprising publisher and be given an extra copyright life by becoming part of a multimedia product. Access to what was once government information, collected at public expense might be severely restricted by placement of the information in a database.
The impetus for the enhanced protection of information contained especially in commercially- owned databases, should be firmly resisted. Equally dangerous is the trend by some database compilers/publishers towards absolute protection through licensing and contract law. In both cases the intended result is the virtual
elimination of fair dealing and other statutory exceptions contained in the Copyright Act. For Canada's research libraries whose priority is the swift, and unimpeded communication of research, this is unacceptable; nor is it in the interests of the general progress of Canadian society.
Timothy Mark
Executive Director CARL/ABRC
