<nettime> The End of History - Jonathan Band on database legislation

[James Love <love@cptech.org>]

Jonathan Band's End of History article on the
     database legislation

There is considerable alarm within the academic community that
the proposed database legislation would harm researchers.
The following is an article by Jonathan Band, a well known
intellectual property lawyer in the Washington, DC office
of Morrison and Forrester, about the impact of the legislation
on historians.  It is reposted here with permission from
Jonathan, and may be redisseminated, or linked to, at the
Association of Research Libraries' web site.
(URL given below).  

jamie love <love@cptech.org>


-----------
http://www.arl.org/info/frn/copy/end.html

The End of History
Comments on HR 2652

By Jonathan Band
Morrison and Forrester

The Collections of Information Antipiracy Act, H.R. 2652, now pending in
Congress, would place a major obstacle in the way of the development of
knowledge because it would prohibit the reuse of information in
different products. Consider the following example.

A graduate student writing his doctoral dissertation on the criminal
prosecution of slaves in antebellum North Carolina does extensive
research at three county courthouses in North Carolina, poring over
dusty, long neglected records. His dissertation includes several charts
which summarize his research; the charts list the number of
prosecutions for each offense, the conviction rate, the sex of the 
defendant and the victim, and other relevant information. As with all 
dissertations by its graduate students, the History Department posts 
an abstract of his dissertation on its website, and makes copies 
available to anyone who pays the photocopying cost.

Another graduate student does similar research in Texas, producing an
article which also includes summary charts. A history professor then
conducts her own research or criminal prosecutions in Alabama, and
writes a book which compares her results with the findings from North
Carolina and Texas. Her book of necessity includes all the facts
contained in the summary charts from the earlier article and
dissertation. Her presentation of the information differs from that of
the article and dissertation, but she properly attributes the source of
her information. Because of the heightened interest in the antebellum
South, the history professor succeeds in finding a prestigious academic
publisher for her book whch sells it aggressively in both the academic
and general markets.

The history professor has violated the provisions of H.R. 2652. She has
extracted and used in commerce a substantial part of collections of
information (the charts in the article) gathered and organized by
another person. Further, her use has harmed the market for the article
and dissertation. Now that she has published her book, demand for reprints 
of the article will go down. Further, although the book's reliance on the 
dissertation enhanced the graduate student's reputation and helped him 
land a tenure-track position, the graduate student (now assistant 
professor) decided against investing the effort necessary to prepare the
dissertation for publication because the book already recited his core 
discoveries. The book also caused him to abandon plans to expand his 
dissertation into a comparative analysis.

The defense for non-profit educational, scientific, or research use
would not apply. The publisher offers the book to regular bookstores,
and the sales will generate modest royalties for the professor. Even if
the publisher distributed the book only through academic bookstores, it
would still produce some royalties for the author, and therefore fall 
out of the educational exception. Moreover, assuming the use could 
somehow meet the non-profit requirement, the exception still would not
apply because the use harms the market for the dissertation and the article.

Notwithstanding the harm to the market, one would be hard pressed to
argue that the professor has "stolen" the information from the article
or the dissertation. As a matter of public policy, we want authors to
use knowledge uncovered by others. Requiring the professor to go to the
courthouses in North Carolina and Texas to redo the research already
done by the graduate students is wasteful. Similarly, requiring the
professor to obtain a license from the graduate students is impractical
and in time will significantly increase the price of research. And what
happens if a fire in one of the North Carolina courthouses destroys the
records, making the dissertation the only source of the information? Or
what if the author of the article refuses to permit the history
professor to use the information because of professional rivalry?

One can change the discipline from history to sociology to biochemistry.
In all fields of knowledge, people rely on information gathered by their
predecessors. As a society we want people to stand, in Isaac Newton's
words, on the shoulders of giants. We do not want them to reinvent the
wheel.

To be sure, in many instances the researcher would not need to use a
"substantial part" of a particular collection of information, but how is
a researcher to know how much she can use, particularly when the test is
qualitative, not quantitative, substantiality? Even her intellectual
property attorney will have no basis for providing guidance. In contrast, 
a non-fiction author can fairly easily handle copyright's fair use 
privilege. If he is going to quote more than a few sentences, he just 
paraphrases the source. And in those gray areas, where the author believes 
he needs to quote more than a few sentences, his copyright
lawyer has over a hundred years of fair use case law on which to rely.

H.R. 2652 will harm not only academic researchers or independent
non-fiction authors, but also many commercial organizations such as
consulting firms which issue reports. For example, Laura Tyson, the
former director of the National Economic Council, was retained by Reed
Elsivier and Thomson to prepare an economic analysis supporting H.R.
2652. As an appendix, Dr. Tyson included several tables extracted from
an article on databases written by Dr. Martha Williams, a professor at
the University of Illinois. These tables represent a significant portion
of the information Dr. Williams presented in her article. Dr. Williams
could bring an action under H.R. 2652 against Dr. Tyson, contending that
Dr. Tyson's use harmed a potential market for a product that
incorporated her information -- a report by Dr. Williams on the need for
database legislation. In other words, H.R. 2652 would allow a database
publisher to tie its consulting services to the sale of its databases.

The bottom line is that H.R. 2652 would make everyone more hesitant to
use information. This, of course, defeats the very objective of the
Information Age.

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

Note, for more information on the legislation, see
http://www.cptech.org/ip/database
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