IP: Sunday WP Editorial on WIPO Treaty

[Dave Farber <farber@cis.upenn.edu>]

Sunday's Washington Post Editorial on WIPO  treaty. jamie




                          Public Data or Private Data?


                          Sunday, November 3 1996; Page C06
                          The Washington Post


                          THE INTERNET WAS initially expected to usher in a
                          world where untold riches of information would be
                          available at the touch of a button to vastly more
                          people than ever before. But as the legal and
                          commercial framework of this once-structureless
                          medium begins to take shape, it has become clear
                          that a few mistakes could lead to just the
                          opposite state of affairs -- a world in which
                          once-public information sources of every kind
                          could be converted to proprietary commercial
                          resources, available not to taxpayers or
                          library-goers (whose taxes may have financed the
                          information's collection) but only to paying
                          customers.


                          The immediate occasion of this worry is a
                          proposal now headed, not for Congress, but for an
                          international conference on intellectual property
                          issues this December in Geneva. The proposal, one
                          of a batch of possible amendments to existing
                          international copyright treaties that will be
                          debated at the meeting, would give private
                          companies that distribute data electronically --
                          including those that contract with state or
                          national governments to do so with public data --
                          much greater controls than they now have over the
                          "reproduction or utilization" of the data in
                          those databases.


                          In some cases, that means that any attempt to do
                          research by compiling material out of a database
                          -- looking up names and addresses, for instance,
                          or consulting public environmental databases or
                          property valuations -- could run afoul of
                          copyright protections. The underlying problem, as
                          always with the Internet, is that you cannot
                          "utilize" most data (that is, read it) without
                          making an electronic copy of it for your own
                          machine. The legal status of such "copies"
                          remains hotly contested, with some researchers
                          raising fears that -- unless the law is cleaned
                          up -- you could violate copyright simply by
                          browsing a Web site.


                          The database issue also raises wider questions of
                          who actually owns publicly compiled data and what
                          constitutes "creative" work in compiling it.
                          Databases come in many shapes, sizes and flavors,
                          from the telephone directory to "value-added"
                          databases such as searchable government document
                          files or newspaper or picture archives. (For the
                          record, we note that The Washington Post Co. owns
                          and distributes data of these kinds.) Under
                          current law, databases with "added value" get
                          protection on the basis that their compilation
                          and presentation amounts to creative expression:
                          You cannot, for instance, copy a page of a
                          newspaper's classified ads to someone's Web site
                          and sell access to it to third parties. But
                          unlike expression and presentation of facts,
                          facts themselves are not protected. A case
                          involving a telephone directory concluded no
                          protection was possible.


                          Then there are also borderline cases, such as
                          that of West Publishing Co., which distributes
                          federal court decisions with the addition only of
                          corrections and page numbers. West was recently
                          blocked from claiming monopoly distribution
                          rights of that material -- public, of course --
                          merely on the basis of those additions. Many more
                          such matters are under consideration. The main
                          concern about the Geneva meeting is that an
                          international treaty could radically shift all
                          these balances without even being weighed in
                          Congress. The administration, and particularly
                          the Commerce Department, which has generally
                          supported taking such issues directly to Geneva,
                          should insist instead on first airing the
                          public's interests in access to information here
                          at home.