RESOUR> [NetGold] INTELLECTUAL PROPERTY: LAW : ARTICLE: How the Current Congressional Database Protection Bill Would Go Beyond Current Law

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Net Happenings - From Educational CyberPlayGround
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Date: Wed, 11 Feb 2004 11:28:49 -0500 (EST)
From: David P. Dillard <jwne@xxxxxxxxxx>
Reply-To: NetGold@xxxxxxxxxxxxxxx
To: NetGold <NetGold@xxxxxxxxxxxxxxx>
Subject: [NetGold] INTELLECTUAL PROPERTY: LAW : ARTICLE: How the Current
    Congressional Database Protection Bill Would Go Beyond Current Law,
     and Why It is Unconstitutional and Misguided

INTELLECTUAL PROPERTY: LAW : ARTICLE: How the Current Congressional
Database
Protection Bill Would Go Beyond Current Law, and Why It is
Unconstitutional and Misguided

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
Findlaw News Editorial
<http://writ.news.findlaw.com/student/20040211_karl.html>

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.

<snip>

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.

------------------------------------------------

The entire article may be read at the URL above.


Sincerely,
David Dillard
Temple University
(215) 204 - 4584
jwne@xxxxxxxxxxxxxxxx
<http://groups.yahoo.com/group/NetGold/>
<http://www.edu-cyberpg.com/ringleaders/davidd.html>
<http://www.kovacs.com/medref-l/medref-l.html>

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