Communications of the ACM
Wanted: Public Policies that Foster Creation of Knowledge
Should basic information and scientific data, including facts and ideas, remain in the public domain for use without authorization or restriction? Or should they be controlled as a proprietary commodity? As these questions continue to stir controversy in Washington, answers are coming into view.
Current U.S. intellectual property law treats facts and ideas separately from their expression. Though facts themselves do not qualify for copyright protection, the expression of compilations of facts can be protected in many circumstances. Under this approach, facts and ideas in the U.S. have existed largely in the public domain for well over 200 years to be used over and over as the building blocks of new scientific knowledge. In turn, society has been rewarded in countless ways through technological innovation and the promise of economic prosperity.
Spurred by multinational database producers that license fee-based databases of scientific data, such as Reed Elsevier and Thomson, the U.S. Congress is today weighing proposals to increase legal protection for collections of data contained in electronic databases. Supporters argue that gaps in current law fail to protect these collections from unauthorized use and duplication made possible by the Internet and ever-improving computer technology. They also suggest that legal changes are necessary to bring existing U.S. law into compliance with that of the European Union and to federalize existing state laws.
ACM and the computing community have compelling reasons to want to participate in the debate. Policy changes that create new restrictions on the facts and ideas in collections of scientific data could dramatically alter their availability and inhibit the free flow of information. The consequences could threaten the traditional process of scientific discourse and frustrate common business practices in the increasingly knowledge-based economy. For instance, researchers might be required to negotiate payment for every fact they use in their research, and searching for information on the Internet could become a fee-for-service activity. Even simple data exchanges among individuals might be hindered by such fundamental change in information policy.
Existing Legal Protections
An array of laws and regulations already protects published facts in the U.S. For example, federal copyright law protects the selection and arrangement of facts in a database. Contracts and licensing agreements that are legally enforceable often prohibit copying and redistribution of information contained in databases. Thus, the parasitic copying of databases and most unauthorized uses are already illegal. Moreover, the Digital Millennium Copyright Act of 1998, the No Electronic Theft Act of 1997, and the Computer Fraud and Abuse Act of 1984 extend special legal protections to electronic databases to prevent unauthorized access and misuse. Finally, state common law misappropriation measures can also be employed to protect the content of databases.
The U.S. Supreme Court's 1991 Feist decision (Feist Publications, Inc. v. Rural Telephone Service Co.) reaffirmed the historical policy of leaving facts in the public domain. In this landmark case, the Court interpreted the U.S. Constitution's objective of promoting "the progress of science and useful arts" as allowing individuals "to build freely upon the ideas and information conveyed by a work." In a 1985 decision (Harper & Row v. Nation), the Court recognized this fundamental policy of leaving facts in the public domain so they could be reused was also protected by the Constitution's First Amendment, stating: "Our profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open leaves no room for a statutory monopoly over information and ideas."
Researchers might be required to negotiate payment for every fact they use in the conduct of their research, and searching for information on the Internet could become a fee-for-service activity.
Meanwhile, the European Union has embarked on a different course. In 1996, it enacted its Directive on the Legal Protection of Databases, expanding the scope of protection over facts contained in databases while prohibiting the extraction or reuse in many cases of a substantial part of any database. The EU Directive also includes a controversial reciprocity agreement denying protection to databases produced in non-EU-member states that do not offer comparable protection to databases.
Since the Directive was enacted, research in Europe has been frustrated by inadequate exemptions for research and education, as well as by other implementation problems. In April 2003, the Royal Society, the leading independent scientific academy in the U.K. (an EU member state), concluded the Directive is damaging to scientific research, recommending it be repealed or substantially amended. Researchers and consumers in Europe have also found the use of basic Internet tools, including search engines, to be overly encumbered by legal and policy uncertainties inherent in the Directive.
Potential Harm
In September 2003, legislation was introduced in the U.S. Congress to create new legal protections for collections of data. While sponsors continue to argue that the legislation is necessary to address a perceived gap in existing law, a diverse coalition of public interest groups, libraries, scientific societies, and IT and financial services firms concluded in an October 2003 letter to the House Judiciary Committee that such a fundamental shift in information policy could create perpetual ownership rights in a variety of data. It further warned that the legislation would lead to the growing monopolization of the marketplace for information where the ability to use facts is increasingly controlled by a shrinking number of international publishing conglomerates.
The U.S. National Academies of Science also recently expressed concern with the breadth and scope of the legislation, advising Congress that it "contains a number of new provisions whose intent and impact are ambiguous and which could have serious unintended consequences for the research and education enterprise." Despite these concerns, the House Judiciary Committee approved the legislation in January 2004. While the race to become law is far from over, the legislation cleared a major hurdle when it won the Committee's approval.
ACM Opposes Restrictions
Citing the importance of maintaining the longstanding U.S. information policy of preserving access to facts and ideas in the public domain, the U.S. Public Policy Committee of the ACM in January 2004 brought this issue to the attention of ACM Council, urging adoption of an ACM public-policy statement opposing new restrictions on access to and use of data collections. ACM Council emailed members describing the policy statement and sought their feedback. Nearly 5,000 ACM members participated in an online member opinion poll in January and February 2004. More than 90% of the respondents agreed (strongly or somewhat) with ACM's policy statement.
In March 2004, ACM's leadership issued a policy statement to the Congress expressing opposition to legislative proposals seeking expansion of U.S. intellectual property protections governing access to and use of data collections. ACM concluded that current U.S. law already provides adequate protection for the scientific facts and ideas that constitute such data. Enacting new restrictions would fail to recognize the legitimate needs of professional, scientific, and everyday users of basic information and scientific data.
Computing researchers and IT professionals create knowledge that leads to scientific, economic, and social progress. Accordingly, policymakers should not enact laws and regulations that unduly threaten the ability of anyone to engage in critical research or interfere in the otherwise legal exchange of ideas and information fundamental to the vitality of computing and IT.
ACM promotes policies that advance the open exchange of ideas and information among computing disciplines and their various constituent researchers, developers, professionals, and students. ACM seeks to ensure the continued public collection, dissemination, and use of scientific and other factual data for academic, professional, and scientific purposes. Since the open exchange of such data and information is fundamental to the advancement of knowledge, technology, and culture, the cost of overprotection far exceeds the cost of underprotection.
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