Hearing on the "Collections of Information Antipiracy Act"
Wm. A. Wulf
President National Academy of Engineering
Vice Chairman National Research Council
Subcommittee on Courts and Intellectual Property
Committee on the Judiciary
U.S. House of Representatives
October 23, 1997
My name is William Wulf. I am currently on leave from the University of Virginia to serve as president of the National Academy of Engineering and as vice chairman of the National Research Council. As you know, the National Academy of Engineering and our sibling organizations, the National Academy of Sciences and Institute of Medicine, operate under a congressional charter that calls on us to provide advice to the government on issues of science and technology.
I am grateful to have the opportunity to testify to you today about the "Collections of Information Antipiracy Act." This proposed legislation concerns a topic about which the Academies, and indeed the entire research and education community, have an abiding interest and deep concerns. It also is one that I have had the opportunity to contemplate from a number of perspectives: as a professor of computer science/engineering, as an assistant director of the National Science Foundation responsible for the Internet, and not least as a founder and CEO of my own high-tech software company that had very real intellectual property concerns. It is this
melding of perspectives from the private sector, government, and academia that I believe is so important to balancing the interests of both content providers and end users in the pending legislation. In particular, I have been fortunate to participate in at least three parts of the wonderful innovation system of this country, and it is from that perspective that I'd like to frame these remarks.
I would like to make several points in this testimony:
Scientific and engineering research are an essential component of the innovation system in the U.S. They are not the only component of that system, but absent basic research, we would not have enjoyed the dramatic improvements in the quality of life over the last century.
Data are the building blocks of knowledge and the lifeblood of research. The broadest possible access to them is of paramount importance to the continued success of the research and educational communities, and thus to our nation's technological prowess.
The worldwide trend to impose strong economic and legal restrictions on the conditions of availability and use of data endangers the research enterprise, and hence the innovation system.
It is imperative to consider carefully the underlying rationale and potential impacts of any changes to intellectual property law concerning database protection, to our research and education base, our innovation system, and hence to our whole economy.
My concern with the proposed legislation is that its impact may be for wider than the immediate effect on the research community. I am not making not special plea for the interests of that community.
I also would like to note at the outset that I am introducing into the official record two attachments to this testimony. The first is a letter sent by the presidents of the two Academies and the Institute of Medicine in October of last year to the Secretary of Commerce, Michael Kantor, regarding the changes to intellectual property law in databases that were then being proposed by the United States in the World Intellectual Property Organization (WIPO). Similar legislation was also introduced during the last session by this Committee. The second attachment consists of the economic and legal chapters of a recent National Research Council (NRC) report entitled Bits of Power: Issues in Global Access to Scientific Data (National Academy Press, 1997). This testimony is based largely on the findings, conclusions, and recommendations of these two documents.
The Need for Access
Scientific and engineering research drives our nation's progress. Society uses the fruits of such research to expand the world's base of knowledge and applies that knowledge in myriad downstream applications to create new wealth and to enhance the public welfare.
Indeed, the implicit policy of the United States has been to support a vibrant research enterprise and to ensure that its productivity is exploited for national gain. Thus, freedom of inquiry, the open availability of scientific data, and the open publication of results are cornerstones of the research enterprise that U.S. law and tradition have long upheld.
The consequences of these wise policies have been spectacular. For many decades, the United States has been the leader in the collection and dissemination of scientific and technical data and in the discovery and creation of new knowledge. Our nation has used that knowledge more effectively than others to support new industries and applications, and all our lives have been enriched as a consequence.
A necessary component of these past and continuing achievements has been the wide availability of scientific and technical data and information, ranging from raw or minimally processed data to cutting-edge research articles in newly developing fields. This information has been assembled as a matter of public responsibility by the individuals and institutions of the scientific and engineering communities, largely with the support of public funding.
Data are the building blocks of knowledge and the seeds of discovery. They challenge us to develop new concepts, theories, and models to make sense of the patterns we see in them. They provide the quantitative basis for testing and confirming theories and for translating new discoveries into useful applications for the benefit of society. They are the foundation of sensible public policy in our democracy. The assembled record of scientific data and resulting information is both a history of events in the natural world and a record of human accomplishment.
The recent advent of digital technologies for collecting, processing, storing, and transmitting data has led to an exponential increase in the size and number of databases created and used. A hallmark trait of modem research is to obtain and use dozens or even hundreds of databases, extracting and merging portions of each to create new databases and new sources for knowledge and innovation. However, not only researchers and educators, but all citizens with access to computers and networks, constantly create new databases and information products for both commercial and noncommercial applications by extracting and recombining data and information from multiple sources. The rapid and continuous synthesis of disparate data by all segments of our society is one of the defining characteristics of the information age.
Progress in the creation and use of new knowledge for the national good depends both on the full and open availability of government and government funded data, and on fair and equitable availability of data from the private sector. By "full and open" we mean that data and information derived from publicly funded research are made available with as few restrictions as possible, on a nondiscriminatory basis, for no more than the cost of reproduction and dissemination. Fair and equitable availability of data from the private sector means that if commercial content providers receive enhanced protections in their databases, that the preferential terms of access to those data by researchers, educators, libraries, and other public interest users, firmly rooted in our Constitution and legal tradition, are retained.
Concerns about the Worldwide Trend to Impose Strong Economic and Legal Restrictions on the Conditions of Availability and Use of Data
It was one year ago this month that the Presidents of the Academies of Sciences and Engineering and Institute of Medicine wrote to the Secretary of Commerce, Michael Kantor, to express our serious concerns about proposed changes to both international and domestic intellectual property law for databases. In our view, those proposed changes, which were modeled on the provisions of the sui generis Directive on Databases that was adopted by the European Communities (EC) in March 1996, had many problems which may be summarized as follows:
* The creation of an unprecedented, absolute exclusive property right in the contents of databases;
* An overbroad definition of databases that potentially included every information product that has heretofore been freely available from the public domain;
* The use of other undefined terms and concepts, creating significant uncertainties in the proposed law's scope and application;
* The introduction of long and potentially perpetual terms of protection, with a resulting possibility of no evolving public domain from which previously compiled data could ever be freely used;
* The absence of public-interest exceptions of any consequence for the preservation of public-good activities such as research, education, and libraries, as well as significant curtailment of other users' rights;
* No mandatory legal licenses or other limitations requiring sole-source providers to make data available on reasonable terms and conditions, with due regard for the preservation of competition and the public interests of research and education; and
* The introduction of strong civil (and possibly even criminal) penalties for infringement that likely would have a chilling effect on the full and open exchange of data for research and educational purposes.
Such unwarranted restrictions on access to and subsequent uses of data by the research and education communities would be exacerbated by the fact that practically all sources of scientific data are natural monopolies, either because the data contents are unique and not reproducible, as in the case of all observational data of natural phenomena, or they are in esoteric niche markets that have a customer base too small to support more than one producer or supplier.
Our concerns were further amplified by the fact that the sui generis restrictions apply as well to publicly funded data in Europe and that this could lead to tremendous strains, or even the breakdown, in certain areas of scientific cooperation between the United States and Europe. In this regard we also have concerns about the incipient government privatization of scientific and other public good databases in the United States, in which care must be taken to preserve public interest exceptions and not to grant exclusive rights to private sector redistributors of government-data.
It should be noted that the Academy presidents were not alone in expressing their criticisms of the proposed sui generis laws last fall and that these concerns were shared broadly by the research, education, and library communities, as well as by significant segments of the commercial database industry. In fact, a review of the written comments received by the Patent and Trademark Office in response to its Notice for Public Comment in the Federal Register last November revealed that there were only six submissions in favor of the proposed sui generis approach, and over 900 that were either against it or critical of some aspect.
Key Considerations in Making Any Revisions to Existing Law
Although we remain deeply concerned about the potential impact that the EC Directive on Databases could have on the international availability of data for research, educational, and other public interest uses, as well as on cross-Atlantic scientific cooperation generally, we are encouraged by the developments that have taken place at WIPO and in Congress since last fall. In particular, we are gratified that the process of deliberating such major changes to the intellectual property law for databases has become more open and appears to have slowed to a rational pace, that the EC sui generis model is no longer the sole option under consideration, and that the participation by representatives of major potentially affected end-user groups, as well as by a broader cross-section of the commercial database and information services industry, has become institutionalized.
I should note that the institutional rules of the Academies and of the National Research Council make it difficult for us to provide specific recommendations on pending legislation on very short notice. However, if the committee wished, we would be pleases to submit a written critique of HR2652.
Over the next year there will be two studies conducted at the NRC of direct relevance to these issues, one examining the underlying technology aspects of intellectual property rights in the networked environment, and the other analyzing several different legal and policy options and their impact on access to scientific and technical data for the public interest. It is certainly our hope that the results of these studies will help inform the Congress and WIPO in contemplating any potential changes to the law.
In conclusion, I would like to offer the following general guidelines for consideration of any new legislation that might be proposed in this area:
* We do not believe that a case has been made demonstrating the need for the strengthening of proprietary rights in databases. The operating presumption should be that current legal and technical means of protection are adequate absent strong evidence that a significant threat of market failure exists. To date, we have not seen conclusive evidence that this threat is real. Major changes to existing law should not be made without extensive study and analysis, including its total impact on our economy.
* If a significant gap in protection against market failure and a lack of incentives to produce databases is shown, any remedy that is developed should take full account of the potential costs and benefits to content providers, users, and ultimately to society as a whole.
* Special care must be taken to preserve and promote the access to and use of databases for research, education, library, and other public interest uses, and to ensure that these end-user communities and institutions are left in no worse position than they occupied before any such remedial action was taken. The impact of failure to do this will extend far beyond the immediate effect on these committees.
* As important stakeholders in and contributors to the innovation system, an specifically the information economy, the research and educational communities must continue to participate fully in the relevant deliberations.
Additional views and analyses of these issues may be found in the attached documents. Thank you again for providing us with the opportunity to testify at this hearing.