This is one bill that should be watched. It was introduced last October but you have time to contact your Senator or Representative to express your opinion.

The database bill has the potential to be one of the most far-reaching laws in its potential to affect American business. Proponents of the law, such as the owners of the LexisNexus data service and the owner of the Westlaw legal publishing company, say it is needed to cure what they see as a shortcoming of the Copyright Act because you can’t copyright facts. Copyright protection only protects the original expression of a fact or thought. Anyone is free to copy and use, even sell, the underlying data. What they can’t do is steal your expression of the facts. News.Com indicates that an equally strong lobby has opposed passage of the bill, including the US Chamber of Commerce. (Tech Firms Fail to Squelch Database Bill on Jan. 21, 2004. ) Confusing the situation is votes in two different House Committees of different versions of the bill. (Weaker Database Bill Gets House Committee Vote on March 3, 2004.)

Even if it takes significant amounts of time or money or both to assemble and publish the facts, the Copyright act will not protect that investment. Further, the Supreme Court has ruled that merely arranging facts in relatively obvious structures is not enough to satisfy the “originality” requirements of the Copyright act.

So, if you own a business and want to collect and use data for a competitive advantage in commerce, what can you do? Well, for one you can lobby Congress to pass a law that creates a new type of liability. In this case, they are not amending the Copyright law, but rather, they are taking a different track. In that way at least, it is similar to the adoption of the Digital Millennium Copyright Act that made it a crime to distribute a program that circumvents the encryption scheme used to protect intellectual property. You may have every right to make a backup copy of a legally obtained DVD under the Copyright act and still commit a crime. Merely making the copy by disabling the protection software violates the DMCA that has been so much in the news.

HR 3261, as originally introduced by Representative Howard Coble and co-sponsored by Rep. Lamar Smith from our area, would outlaw making

I had heard for years that some sporting events were trying to monopolize the reporting of the scores. That way, they could sell the rights to report the statistics during the match and maybe even the final scores. At present those rights would be worthless because, any other news media, or person for that matter, could simply copy the facts.

There are many things about the proposed bill that are not clear. On one hand there is a poorly worded exemption that protects news reporting. On the other hand, that exemption may be further limited if the facts are time sensitive. Does that mean that you can’t get the Spurs’ scores for a day, a week or ever unless you buy a special license to view the standings? Hopefully, the bill will be refined before it is adopted to make it clear how much can be used and how long “time sensitive” information is protected. It may be entirely fair if the monopoly only lasts for an hour or so. It would be completely different if we didn’t know the results for a month.

Other key portions of the bill as first introduced rely upon phrases that are not adequately defined. Actually, it is one of the best examples of legal mumbo-jumbo I’ve seen in almost twenty-five years of practice. What does the phrase “substantial number of members of the public” mean? How would a proposed use be judged if the law directs that “the court shall consider the temporal value of the information in the database, within the context of the industry sector involved?” As stated above, the special treatment for news organizations is not any clearer when it provides,