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United States Legislative Proposals

1996

The first US legislation seeking to provide sui generis protection for databases was the “Database Investment and Intellectual Property Antipiracy Bill of 1996” (H.R. 3531) introduced two months after the adoption of the EU Directive as part of the 104th Congress. This bill was very similar to the final Directive and was based on Congresss Commerce Clause power. § 4 of this bill provided (italics added for emphasis):

The bill described “a database subject to the Act” as “the result of a qualitatively or quantitatively substantial investment of human, technical, financial or other resources in the collection, assembly, verification, organization or presentation of the database contents, and (i) the database is used or reused in commerce; or (ii) the database owner intends to use or reuse the database in commerce.” The bill would also exclude government databases and computer software, and databases would remain protected even if it is used publicly or commercially independent of its medium or whether the contents are intellectual creations.

The bill would have created an exception for lawful users that extract insubstantial portions, and it would allow the independent creation of the database. The bill provided a 25 year term of protection that could be renewed if there were “any change of commercial significance.” The bill created civil and criminal penalties and expressly stated that other forms of legal protection were unaffected. The bill also provided anti-circumvention and database integrity provisions that were subject to civil penalties.

Some interesting observations: the bill was very similar to the final EU Directive and created a kind of property right in the database. Unlike protection with misappropriation, the database owner would only have to demonstrate a conflict with the defendant’s actions and “normal exploitation.” Like the Directive, the database could receive effectively perpetual protection by simply changes to the database. The 25 year protection was longer than the 15 years provided by the Directive. Another problem was the fact that the proposed legislation did not preempt other laws. Accordingly, the limited protections could be contracted away or protected under other regimes.

Interestingly, the use of the concept of “conflict with normal exploitation” is consistent with copyrights exclusive rights. Although the effort was supported by information industries, scientific and educational organizations opposed it. In response, later bills moved away from a property-based theory to one mimicking the tort of misappropriation in an attempt to create a more uniform equity-based regime.

1997

In 1997, the “Collections of Information Antipiracy Act” was introduced in the House (H.R. 2652) as part of the 106th Congress. The final bill (that passed the House by voice vote in 1998) was almost passed by both chambers along with other sweeping technology bills, such as the DMCA. It was changed somewhat from the original bill introduced (italics added to show the changes to the original bill but appearing in the final bill):

Any person who extracts, or uses in commerce, all or a substantial part, measured either quantitatively or qualitatively, of a collection of information gathered, organized, or maintained by another person through the investment of substantial monetary or other resources, so as to cause harm to the actual or potential market of that other person, or a successor in interest of that other person, for a product or service that incorporates that collection of information and is offered or intended to be offered for sale or otherwise in commerce by that other person, or a successor in interest of that person, shall be liable to that person or successor in interest for the remedies set forth in section 1206.
Even though the language is more similar to the tort of misappropriation than the prior proposal by focusing on extraction or use resulting in harm as opposed to extraction or use that is in conflict with normal exploitation, it lacked the time-sensitivity requirement and the direct competition requirements. Interestingly, the focus on gathering and organizing maintains a link to the copyright laws requirement for originality (i.e. selection and arrangement), but the 1997 bill does introduce the factor of maintenance. The bill provided a somewhat expanded list of permitted acts but kept the same exclusions. The bill also dropped the anti-circumvention and integrity provisions. The bill also introduced a more purposeful element to the definition of a database and limited the timeliness for an action to 15 years.

1999

The successor to the 1997 Bill was the “Collections of Information Antipiracy Act of 1999” (H.R. 354), which was very similar but contained some important changes to obviate the causes of its failure to pass previously. The prohibition stated in two parts (italics added to emphasize changes from 1997 bill):

(a) Any person who makes available to others, or extracts to make available to others, all or a substantial part of a collection of information gathered, organized, or maintained by another person through the investment of substantial monetary or other resources, so as to cause material harm to the primary market or a related market of that other person, or a successor in interest of that other person, for a product or service that incorporates that collection of information and is offered or intended to be offered in commerce by that other person, or a successor in interest of that person, shall be liable to that person or successor in interest for the remedies set forth in section 1406.

(b) Any person who extracts all or a substantial part of a collection of information gathered, organized, or maintained by another person through the investment of substantial monetary or other resources, so as to cause material harm to the primary market of that other person, or a successor in interest of that other person, for a product or service that incorporates that collection of information and is offered or intended to be offered in commerce by that other person, or a successor in interest of that person, shall be liable to that person or successor in interest for the remedies set forth in section 1406.
The bill generally described “misappropriation” the same as in the 1997 bill, but raised the threshold to “material” harm and focused on the extraction element (not use). Other changes include: “primary and related market” for “actual and potential market” and the dropping of “quantitatively and qualitatively.” The bill also carved out an expanded and generalized fair use-like set of exceptions. Interestingly, the materiality and the more limited market definitions shifted more to a harm approach and further away from a property-based approach. However, absent some additional limitations, the bill would still provide broader protection than the tort of misappropriation. Despite these changes, however, this bill did not pass in either chamber.

An alternative bill was also introduced in 1999, “Consumer and Investor Access to Information Bill of 1999” (H.R. 1858) that stated more succinctly (italics added):

It is unlawful for any person or entity, by any means or instrumentality of interstate or foreign commerce or communications, to sell or distribute to the public a database that-
This bill was substantially more limited; it only prevented the duplication of the entire database. It also provided a number of exceptions and exemptions. This bill failed in committee.

2000 - present

The 107th Congress (2001-2002) was silent on the issue. Starting in 2003, we see activity resume. The “Database and Collections of Information Misappropriation Act” (H.R. 3261) was introduced in the House in late 2003. Interestingly, this bill is decidedly more like the tort of misappropriation. It states (italics added):

Any person who makes available in commerce to others a quantitatively substantial part of the information in a database generated, gathered, or maintained by another person, knowing that such making available in commerce is without the authorization of that other person (including a successor in interest) or that other person’s licensee, when acting within the scope of its license, shall be liable for the remedies set forth in section 7 if-
Clearly, this language looks very much like the test applied in misappropriation cases by the courts. The bill defined “injury” as replacement in the same database market. Another bill introduced as part of the 108th Congress was the “Consumer Access to Information Act of 2004” (H.R. 3872), which takes a different path. First, the bill defines misappropriation of a database as (italics added):

This language is virtually identical to the articulation of the misappropriation test by the 2nd Circuit in the Motorola case. This language represents a continued (and now complete) shift from a property-based to a modern misappropriation-based protection. Another interesting difference from prior bills is that this bill only empowers the FTC to prosecute violations as “unfair or deceptive acts or practices” as defined by § 18 of the FTC Act. Neither of these two bills was able to make it to a vote.

So far, the 109th Congress has not produced any bills for the protection of databases. However, increasing focus is being placed (through a large number of bills being circulated in Congress) on the security of databases and the regulation of so-called “information brokers” as it pertains to avoiding identity theft, threats to national security, and personal or health information.