IP: H.R. 2652 -- Implications for Science and Academic

[Dave Farber <farber () cis upenn edu>]

> To:       USACM () ACM ORG




The attached analysis of the bill AS REPORTED and which would go to the
House floor was done by Prof. Peter Jaszi of AU Law School.


H.R. 2652 -- Implications for Science and Academic Research
     Although the "Collections of Information Antipiracy Act" is
designed to address predatory competition in the commercial database
market, the actual reach of this bill is far broader.  As presently
worded, it creates new rights in all kinds of data and has the potential
to chill many forms of information use.  Because of its overbreadth,
enactment of this legislation would have serious adverse consequences for
providers and users of data in science and the academic community
generally. These consequences should be taken fully into account before
any further legislative action is taken on H.R. 2652.
     Data is the life blood of academic research, and access to more
data (be they records of physical observations or historical discoveries)
is better than access to less. Under current copyright doctrine, decisions
about what information to include in a collection or how to arrange that
information may be protected -- no one can copy the manner in which a
particular compilation is presented.  Importantly, the data which make up
contents of compilations are not subject to protection.  Instead, they
remain free for all to use.  The current state of the law has been a
positive one for scientific research.  At it now stands, that law provides
researchers with no incentive to withhold information in order to create
conditions of scarcity.  Rather, it encourages every researcher to make
his or her factual findings available, by means of publication, as part of
a common pool of knowledge from which all those working in the field are
free to draw.  Maintaining such an open information environment is
critically important to the progress of research and development efforts
in the public and private sectors.
     H.R. 2652 now threatens this basic paradigm of data exchange, by
providing unprecedented new legal protection for information.  Under its
provisions, anyone who collects information (whether self-generated or
generated by others) may be entitled to assert rights against others for
the unauthorized "extraction" or "use" of the collection's contents.
     The bill's prohibitions would apply far beyond activities which are
commercially competitive with those of the original compiler of an
information collection.  Under H.R. 2652,  a researcher could be required
to obtain a license in order to republish all or some of another's data,
> and
to analyze or manipulate it to reach research conclusions -- if the first
compiler had taken the necessary steps to establish or anticipate a market
in permissions.   It is important to note that the prohibitions contained
in H.R. 2652 apply to researchers in nonprofit institutions when they
> extract
or use information from the published research results of other scientists
and academics.  These features of H.R. 2652 will have distorting effects
> on
the way in which information is made available within the research
community.
     The economic pressures which would be unleased by H.R. 2652 are
ones to which, sooner or later, the research community is likely to be
forced to bend.  Easy though it may be to suggest that even in this
projected new legal environment, researchers could choose to continue to
make their factual findings freely available, it is unlikely as a
practical matter that many would be able to do so, at least for long.  In
an era of declining grant revenues and increasing pressures for cost
recovery, every research project necessarily will be regarded as a
potential profit center, as well as a scientific or scholarly undertaking.
Thus, researchers may have no choice except to take advantage of H.R.
2652's invitation to engage in comprehensive commercial exploitation of
their findings.  Moreover, since every scholar and scientist both consumes
and produces data, H.R. 2652 is likely to create a kind of economic "chain
reaction" within the research community; for every set of research results
which is made available pursuant to license, other researchers will
experience new costs of data acquisition, leading them (in turn) to
consider what additional revenues they may be able to derive from the
licensing of their own findings.  Ominously, it is precisely the data
which have the greatest immediately scientific, medical or social
importance, and on which others depend more heavily, which are most likely
to be subjected to this treatment.
     There are a number of additional problems with H.R. 2652, if the
bill is viewed from the perspective of the education communities:
     -- There are no limitations or exceptions which are relevant to
the issue of re-use of previously published data in a scientific or other
academic context.  Obviously, the kinds of data of interest to scientific
and academic researchers would be likely to satisfy the threshold
requirement of having been "gathered, organized, or maintained" through a
"substantial"  investment of money or other resources.
     -- The 15-year limit on protection will be largely unavailing: In
the world of research few data users can afford to wait.  Moreover,
enactment of the bill would extend retroactive protection to compilations
created less than 15 years before the date on which it became effective.
     -- H.R. 2652 identifies the use of "individual items of
information and other insubstantial parts" of a data collection, as well
as "nonprofit education, scientific, or research uses," as "permitted."
However, these qualifications on the new right are of trivial significance
to the research community.  Scientists cannot be expected to practice the
sort of parsimony in information use which would be required to qualify
under the first of these headings.  As to the second, the permission for
nonprofit uses applies only where the use "does not harm the actual or
potential market for the work."  In other words, this later provision is a
reverse restatement of H.R. 2652's standard for liability: while uses
which do deprive the compiler of revenue are permitted, those which "harm
to actual or potential market"  are prohibited -- even if they are
undertaken for legitimate non-profit educational purposes.
     -- The relief H.R. 2652 offers academic researchers from potential
criminal liability (as well the allowance for remission of civil damages
where a researcher has made a good faith error in believing his or her use
to be permissible) does little if anything of practical importance to
address the adverse consequences of data protection for the research
enterprise.
     Finally, it should be noted that while the bill's provision that
data rights do not "restrict any person from independently gathering
information or using information" not obtained from a protected
collection, this qualification on protection has little meaning for the
research community.  Among scientists, in particular, new work strives to
incorporate and move beyond previous results, rather than merely to
reproduce them.  Significantly, H.R. 2652 does not impose any limitations
on the availability of protection for collections which are the "sole
source" of particular kinds of information.  This is a matter of special
concern because the results of every scientific experiment, every physical
survey, and every historical research program have the character of a "de
facto sole source" database; subsequent scientists and scholars will have
no practical choice except to draw upon the preexisting data if their new
work is to advance the sum of knowledge.
     The adverse consequences of the proposed H.R. 2652 for science and
education could be avoided if the bill were revised to incorporate a true
"misappopriation" approach, focussing on the regulation of unfair
competitive practices among commercial firms providing data to consumers.
This approach to the problem of data protection would draw on such
legal precedents as INS v. AP and NBA v. Motorola, and would emphasize
the essential factors of classical misappropriation analysis in cases
related to data: commercial "free-riding" by the unauthorized user, the
time-sensitivity of the information involved, and harm to the competitive
position of the compiler.  Legislation with this emphasis would resolve
the identified problem of predatory commercial practices without producing
unintended adverse consequences for the nonprofit sector.
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