The Continuing Battle Over Federal Database Legislation (And What Database Owners Can Do About It)

Is there a gap in United States intellectual property law that should be filled by new legislation? The controversial issue of protecting factual databases is once again before Congress. Many owners of commercial databases have sought federal protection for compilations of information since 1991, when the Supreme Court ruled that copyright law protects only the selection and arrangement of factual information in a compilation, not the underlying facts themselves. Proponents of database protection argue that a new law, protecting the contents of databases from unauthorized copying, is necessary to provide an incentive to invest in the creation of databases and to bar what they characterize as piracy. A powerful opposition group, which includes scientists, librarians, large database users, and the United States Chamber of Commerce, rejects this view, contending either that existing laws adequately protect databases or that only minor changes in law are needed.

These forces have battled to a standstill. The most recent attempt to enact legislation, the proposed Database and Collections of Information Misappropriation Act, H.R. 3261, was approved by the House Subcommittee on Courts, the Internet, and Intellectual Property in January 2004, but was rejected in favor of a weaker alternative by the House Subcommittee on Commerce, Trade, and Consumer Protection on February 25, 2004.1 The likelihood that Congress will not enact database legislation soon suggests that database owners should explore alternatives to provide themselves with maximum protection under existing law.

Databases Under United States Copyright Law

Copyright law protects expression, not underlying factual information. In Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 349 (1991), the Supreme Court held that with respect to compilations of factual information, "only the compiler's selection and arrangement may be protected; the raw facts may be copied at will." Feist rejected the "sweat of the brow" theory under which the effort involved in compiling facts justified extending copyright protection to the contents of a database. However, protection of "selection and arrangement" does little for commercial databases that provide all data relevant to a universe of facts but do not arrange the data in a creative fashion (for example, a telephone directory that lists all subscribers in a region in alphabetical order). Under Feist, the compilers of these databases cannot use copyright to stop the appropriation, repackaging, and redistribution of their database information. The Feist decision left the multibillion-dollar United States database industry scrambling for another source of protection.

European Sui Generis Database Protection

Meanwhile, protection for databases increased dramatically across the Atlantic Ocean. Observing that existing legislation failed to adequately protect databases in all of its member states, the European Union issued a directive in 1996 to establish a new uniform protection for databases in all EU countries.2 The directive required member states to enact legislation that created a new "sui generis" right in a...