The Other Players

Internet Integration Stirs Global Copyright Battle

By John Makulowich


Eric Peterson/SIS

Anyone active on the Internet - whether developing, researching, communicating or collaborating - will smile knowingly at the tag: "It's the data, dummy!" Yes, they will say, it's just a question of free access to bits and bytes of information strewn across cyberspace.

But stretch that question beyond the shores of the United States, and they will suddenly delve into another dimension, one beyond the dummy-dialing-for-data model.

In fact, government-sponsored research is running headlong into the information technology industry's desire for greater control of vital databases of scientific and technical information.

Paul F. Uhlir, associate director for special projects of the Commission on Physical Sciences, Mathematics, and Applications at the National Research Council in Washington, says copyright law will be turned on its head if a database directive adopted by the European Union in March 1996 becomes law elsewhere.

Uhlir's vision is one that could adversely affect the Internet and the notion of integration for some time to come. From his perch of director of the U.S. National Committee for
CODATA (Committee on Data for Science and Technology), Uhlir has tried to rally support from his colleagues and peers on the adverse consequences that passage of the database directive would have on education and science as well as nonprofit organizations.

THE COPYRIGHT

The protagonists in this struggle include the European Union, an umbrella organization of 15 European countries that cooperate in a broad range of areas and projects. They are Belgium, Germany, France, Italy, Luxembourg, Netherlands, Denmark, Republic of Ireland, United Kingdom, Greece, Portugal, Spain, Austria, Finland and Sweden.

On the other side is CODATA, set up as an interdisciplinary committee in 1966 by the International Council of Scientific Unions. Among its goals are to improve the quality, reliability, processing, management and accessibility of data vital to science and technology.

Based in Paris, the International Council of Scientific Unions was founded in 1931 to bring together scientists in international scientific projects. One of its key goals is to reduce the barriers of specialization by initiating and coordinating major international interdisciplinary programs.

The European directive came into full force on Jan. 1, 1998, while you were still feeling the effects of bringing in the new year. It is formally known as the "Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases."

In the words of the International Council of Scientific Unions, "the fundamental principle of full and open exchange of data and information is for scientific and educational purposes." The European Union directive challenges that policy approach head-on.

With this background, it's easier to understand the importance of the Dec. 15-17 conference in Bethesda titled "Scientific and Technical Data Exchange and Integration." The interdisciplinary conference, the first of its kind, featured three levels of activity. Through papers and working sessions, conference attendees gathered to "identify key priorities for data exchange and integration, highlight successful case studies, and foster cooperation among scientific and engineering disciplines, government, and industry."

On a second level, there was widespread recognition that data gathering and exchange are generally not taking place between and among those engaged in multidisciplinary activities.

This thread weaves its way through the verbiage of the conference planners: "When scientists or engineers use different computer programs or attempt to exchange data among varied disciplines, the results are often problematic. Scientific databases, the Internet, and other technologies often cannot be fully exploited for research and development because of incompatibilities among systems."

SEEKING BETTER COMMUNICATION

So much for any mention of politics, culture, competition or funding rivals creating barriers to data integration and exchange. Enter Dr. John R. Rumble Jr., chief of the Standard Reference Data Program at the Commerce Department's National Institute of Standards and Technology and one of the guiding forces behind the idea for the conference and its chair.

Rumble openly admits that few of the researchers involved in today's successful multidisciplinary efforts - such as the Human Genome Project, Global Climate Change, Federal Geographic Information Committee or ISO STEP (Standard for the Exchange of Product Model Data) - talk to one another.

"To reach beyond today, to address the question, 'Will tomorrow's world be able to use today's information?' multidisciplinary groups cannot become islands. We need to take advantage of now to think of the future," Rumble said at the conference.

The issue of the EU directive on databases was covered in a talk by Uhlir titled, "Legal Challenges to Data Exchange and Integration." He noted that the European database directive greatly increased intellectual property rights protection for database creators and vendors in both the private and public sectors.

Similar initiatives were proposed in the United States and in the World Intellectual Property Organization in 1996 and 1997, he said. Because of significant opposition by the research and education communities, telecom and Internet service providers, among others, proposals were not adopted in the United States or WIPO.

Still, according to Uhlir, the legal changes enacted in Europe and still promoted in the United States "have a number of attributes that could severely restrict data exchange, access and use by researchers, educators and other public interest users."

The issues surrounding the exchange and integration of data certainly did not arise overnight. In fact, they are the subject of an extensive study, one directed by Uhlir himself and published in 1997 by the National Academy Press under the title, "Bits of Power: Issues in Global Access to Scientific Data."

That publication, in its summary, set a cautious tone for the future of data integration and exchange: "With few exceptions, acquisition of scientific knowledge is a cumulative process that depends on researchers' continuing ability to collect and share data. This capability has been strengthened by the advent of information technology, which is supplying powerful new tools and enabling new styles of working. However, far-reaching changes involving complex technical, economic, and legal issues also have begun to alter the conditions for exchange of data among scientists, especially across national boundaries."

The concern has spread to other arenas. For example, the ICSU itself, through an Ad-hoc Group on Data and Information, created a World Wide Web page that offers a summary of database protection activities (http://www.
nrc.ca/programs/codata/data_access/summary.html).

As stated on the Web site, "ICSU has become increasingly alarmed by the potential adverse effects of new intellectual property laws on the conduct of science and education. The traditional open access to scientific data, which is fundamental to much science and education could be jeopardized."

As the ad-hoc group notes, databases are already protected under copyright as far as creativity or selection, coordination and arrangement. However, a new type of legal protection, a second layer, as it were, termed "sui generis" right, would effectively protect the contents of databases, that is, the facts themselves.

The group concludes, "Compilations of data or datasets that have traditionally been in the public domain for lack of sufficient 'originality' (to make them copyrightable) will now be protected against unauthorized uses."

COPYRIGHT SUPPORT FOR DATABASES

The group goes on to point out that such legislation has been approved by the European Union, was considered in a draft treaty at the World Intellectual Property Organization last year and will likely be introduced again in the U.S. House of Representatives this year. Rep. Howard Coble, R-N.C., introduced HR 2652, the Collections of Information Antipiracy Act, last October.

In remarks introducing the legislation, Coble referenced a report by Dr. Laura D'Andrea Tyson, former national economic adviser to President Bill Clinton. Coble said that Tyson's study demonstrates strong economic reasons for providing adequate statutory protection for the database industry, and points out that failure to act may result in adverse effects on technological progress, economic growth and possibly on the research, education and scientific communities.

Coble said, "Noted authors and scholars have also endorsed the need to provide some protection to collections of information, to prevent freeloaders from appropriating the fruits of others' investments."

However, Coble failed to note that Tyson's study was sponsored by Reed Elsevier, a strong supporter of the EU directive. Reed Elsevier bills itself one of the world's largest publishing and information companies, with activities ranging from scientific, professional, business and, to a smaller extent, consumer publishing.

Reed Elsevier came into existence Jan. 1, 1993 when Reed International PLC, a U.K. company, and Elsevier NV, a Dutch company, contributed all their businesses to two jointly owned companies; Reed Elsevier plc, an operating company and Elsevier Reed BV, a finance company.

Addressing growth opportunities in electronic media, the company's Web site declares: "Reed Elsevier is committed to providing customers with products in whatever format they require. Information is stored digitally in what are termed "media neutral" databases from which products can be generated in a variety of formats."

Electronic publishing now accounts for 16 percent of total Reed Elsevier revenue and this percentage is expected to increase significantly over the next few years, according to the company's Web site.

In May 1997, in a joint release issued in London and Redmond, Wash., Reed Elsevier and Microsoft announced a letter of intent to "make Microsoft technologies a cornerstone of Reed Elsevier's electronic information products and corporate computing platforms."

The agreement was hailed as "part of Microsoft's strategy of forming significant alliances in several industries." Under the pact, Reed Elsevier will be Microsoft's key alliance partner in the scientific, professional and business publishing and information industry.

The five-year agreement will enable Reed Elsevier to use Microsoft Commercial Internet Systems. That suite of commercial-grade Internet applications will be used to enhance Reed Elsevier's future electronic offering of its information products to customers in the scientific, legal, business and travel information markets. The companies valued the pact at around $30 million.

THE BIG PICTURE

For Uhlir, there are a number of issues and impacts to address. In the big picture, he views the European Union directive and its kin as part of evolving Internet law, digital intellectual property law and the digital economy in general.

"The question is to balance the rights and interests of the content providers and publishers on the one hand and the public and user communities on the other. The infrastructure providers are an important part of this balancing act, too, Uhlir said at the conference.

While the publishers' interest is to see as much use as possible of databases since this is where they get their money, they are trying to do a power play. "They want control over content and distribution as well as control over use by users of proprietary information," Uhlir said.

For him, restrictions on the way digital information is obtained and used raises serious concerns about fair use provisions and the effect it would have on generally favorable provisions now in force for libraries and the education and research communities.

"The Database Directive in Europe provides unprecedented control over databases, a form that has been considered less worthy of IP restrictions. Most databases are copyrightable but they do require some creative selection. Publishers have used this as an excuse to establish a new set of rights, which cover a much broader area than just databases," said Uhlir.

In the United States, he said, at least one information industry group, the Washington-based Information Industry Association, claims there is a gap in the law and feels that the majority of its members are under-protected, that is, databases are subject to pirating. But he counters that a case has not been clearly made that the sky is falling.

"Not all industry publishers support restrictive legislation. There are other means to protect databases. The issue here is trying to strike a socioeconomic balance between the different interested parties. The goal ought to be to promote creation and use of new knowledge and not promote the small group of large publishers," Uhlir said.

Among the more serious impacts of such legislation, he said, would be its potential to undermine interdisciplinary research by restricting data sharing as well as its encouraging other nations to adopt restrictive legislation and practices.

"If Europe wants to enforce this kind of approach in other countries that have not adopted this kind of law, it would have to foster or encourage the adoption of specialized IP laws throughout the world. This could well yield protectionist laws worldwide following the European model," Uhlir said.

DATA DATA EVERYWHERE...BUT HOW MUCH TO SHARE? (in terabytes)

Data Source By 1997 By 1998 By 1999 By 2000 By 2001 By 2005
Landsats 1-5 120.5 122.5 122.5 122.5 122.5 122.5
Advanced Very High Resolution Radiometer 12.5 16.5 20.5 24.5 28.5 40.0
Shuttle Imaging Radar-C 20.0 90.0 90.0 90.0 90.0 90.0
Landsat 7 - 20.0 70.0 120.0 170.0 170.0
Shuttle Radar Topography Mission - - 112.0 113.0 114.0 117.0
Moderate-resolution Imaging Spectroradiometer - 10.0 36.0 62.0 88.0 166.0
Advanced Spaceborne Thermal Emission and Reflection Radiometer - 15.0 60.0 110.0 160.0 310.0
Total 153.0 274.0 511.0 642.0 773.0 1,215.0
Projected volume (in terabytes) of satellite remote-sensing data holdings at the U.S. Geological Survey's Earth Resources Observation Systems Data Center, 1997 to 2005.

Source: U.S Geological Survey, National Mapping Division


The Other Players

The sponsorship of HR 2652, Collections of Information Act, by two of the world's larger publishers, Reed-Elsevier plc and The Thomson Corp., does not sway all the key players.

One of the dissenting voices is The Dun & Bradstreet Corp., New York.

Jean Cantrell, director of the company's Washington, D.C., Government Affairs office, submitted a letter Oct. 30 to Rep. Howard Coble, R-N.C., who is chairman of the Courts and Intellectual Property subcommittee, in the wake of committee hearings on the bill that he convened last Oct. 23.

In the letter, the company hastened to set the record straight after their position was misrepresented by one of the individuals who testified before the committee.

Noting they were "surprised and troubled" by the congressional testimony of Jerry Reichman, a Vanderbilt Law School professor, a Dun & Bradstreet spokesperson stated that, in fact, the company was not opposed to the bill.

What company officials are opposed to is the "sui generis" database legislation that was introduced last year by recently retired California Republican Carlos Moorhead and "to the similar database protection treaty proposed at last year's WIPO conference."

More to the point, Cantrell wrote, "Dun & Bradstreet does not yet have a position on HR 2652 and, we note respectfully, is not yet persuaded that there is a need for such legislation."

Cantrell recently told Washington Technology, "We initially supported the database directive when it came out about four years ago. We started to study it more carefully when it became a domestic issue. We take great pains to comply with the regulations in each nation since we operate in over 40 countries. At this point, we do not anticipate any problems with the EU Database Directive."

-John Makulowich


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