[10807] in Public-Access_Computer_Systems_Forum
Sports Statistics to Be Regulated (Part II)
daemon@ATHENA.MIT.EDU (Public-Access Computer Systems For)
Mon Nov 11 20:44:38 1996
Date: Mon, 11 Nov 1996 19:16:27 -0600 (CST)
From: Public-Access Computer Systems Forum <LIBPACS@UHUPVM1.UH.EDU>
To: Multiple recipients of list PACS-L <PACS-L@UHUPVM1.UH.EDU>
Reply-To: Public-Access Computer Systems Forum <PACS-L@UHUPVM1.UH.EDU>
From: James Love <love@tap.org>
Subject: Sports Statistics to Be Regulated (Part II)
APPENDIX
-----------------------------------------------------------------
Extracts from James Love, "A Primer On The Proposed WIPO Treaty
On Database Extraction Rights That Will Be Considered In December
1996, October 29, 1996, http://www.essential.org/cpt/ip/cpt-
dbcom.html]
WHAT IS A DATABASE? WHAT ISN'T A DATABASE?
The treaty would protect "any database that represents a
substantial investment in the collection, assembly, verification,
organization or presentation of the contents of the database."
This term should be understood "to include collections of
literary, musical or audiovisual works or any other kind of
works, or collections of other materials such as texts, sounds,
images, numbers, facts, or data representing any other matter or
substance" and "may contain collections of expressions of
folklore." The "protection shall be granted to databases
irrespective of the form or medium in which they are embodied.
Protection extends to databases in both electronic and non-
electronic form" and "embraces all forms or media now known or
later developed. . . Protection shall be granted to databases
regardless of whether they are made available to the public. This
means that databases that are made generally available to the
public, commercially or otherwise, as well as databases that
remain within the exclusive possession and control of their
developers enjoy protection on the same footing."
WHAT ARE EXTRACTION AND UTILIZATION RIGHTS?
"The maker of a database eligible for protection under this
Treaty shall have the right to authorize or prohibit the
extraction or utilization of its contents." What is "extraction"?
Extraction is defined as, "the permanent or temporary transfer of
all or a substantial part of the contents of a database to
another medium by any means or in any form." "Extraction . . . is
a synonym for `copying' or `reproduction' . . . by `any means' or
`any form' that is now known or later developed."
"Utilization" is defined as "making available to the public all
or a substantial part of the contents of a database by any means,
including by the distribution of copies, by renting, or by on-
line or other forms of transmission," including the right to
control the use of the data "at a time individually chosen by
each member of the public."
WHAT IS A "SUBSTANTIAL PART" OF THE DATABASE?
The treaty sets out tests for determining if an extraction is
"substantial," and these tests are both highly anticompetitive,
and extremely broad in scope.
The "substantiality" of a portion of the database is assessed
against the "value of the database," and considers "qualitative
and quantitative aspects," noting that "neither aspect is more
important than the other . . . This assessment may also take into
account the diminution in market value that may result from the
use of the portion, including the added risk that the investment
in the database will not be recoverable. It may even include an
assessment of whether a new product using the portion could serve
as a commercial substitute for the original, diminishing the
market for the original."
Then the treaty adds that a "substantial part" means any portion
of the database, "including an accumulation of small portions . .
. In practice, repeated or systematic use of small portions of
the contents of a database may have the same effect as extraction
or utilization of a large, or substantial, part of the contents
of the database."
In the US implementing legislation, the only types of data use
that would not be regulated would be "insubstantial" parts,
"whose extraction, use or reuse does not diminish the value of
the database, conflict with a normal exploitation of the database
or adversely affect the actual or potential market for the
database." Under this language, a database owner could say that
it might in the future want to charge for each transmission of a
fact or an element of a database as part of its "normal
exploitation" of the database. With the Internet and digital cash
this claim is likely to be made. The public would not have "fair
use" rights, since fair use is only defined in matters involving
copyright.
FOR HOW LONG? 15 YEARS, 25 YEARS, OR FOREVER?
The Treaty would require a minimum term of protection (15 years
in the EU proposal, and 25 in the United States proposal) for the
database. But this is extended each time the database is revised
or enhanced. According to the draft treaty, "any substantial
change to the database, evaluated qualitatively or
quantitatively, including any substantial change resulting from
the accumulation of successive additions, deletions,
verifications, modifications in organization or presentation, or
other alterations, which constitute a new substantial investment,
shall qualify the database resulting from such investment for its
own term of protection."
The provision on revisions raises the specter that protection for
many databases will be perpetual. This could indeed be the case
if the original versions of the database are only "licensed" by
the vendor for a limited period of time, so that the only
available versions would be the new ones, which would have a new
term of protection. [Database vendors write these restricted use
licenses now].
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
INFORMATION POLICY NOTES is a free Internet newsletter sponsored
by the Taxpayer Assets Project (TAP) and the Consumer Project on
Technology (CPT). Both groups are projects of the Center for
Study of Responsive Law, which is run by Ralph Nader. The
LISTPROC services are provide by Essential Information. Archives
of Info-Policy-Notes are available from
http://www.essential.org/listproc/info-policy-notes/
TAP and CPT both have Internet Web pages.
http://www.tap.org
http://www.essential.org/cpt
Subscription requests to info-policy-notes to listproc@tap.org with
the message: subscribe info-policy-notes Jane Doe
TAP and CPT can both be reached off the net at P.O. Box 19367,
Washington, DC 20036, Voice: 202/387-8030; Fax: 202/234-5176
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
