Lapas attēli
PDF
ePub

Before I do, I believe Professor Lederberg wanted to comment about something we were talking about in my last round, and because the time ran out, he didn't get to.

Mr. LEDERBERG. They gave me the opportunity, thank you.

Mr. BERMAN. Well, I didn't hear it, but she'll tell me later. [Laughter.]

Mr. BERMAN. I want to get down to this-again, it goes back toyou're the first one to sort of raise it with me, this whole issue of we have many other concerns that the administration expressed, but then the solution being, this draft of the Database Fair Competition and Research Promotion Act, a draft that I have not seen. But as I am told, the general prohibition is that it is unlawful for a person to duplicate a database, collected and organized by another person in a database that competes in commerce with that other database.

There is no definition of duplicate. I have a common sense definition of duplicate, which is an exact copy. I mean, not to-I mean, it duplicates, to me, is what it means.

Maybe that isn't what the authors of this proposal meant it to mean, so, in addition, I guess-am I wrong about that?

Is that what you want to be the heart of the law that we should pass as a substitute for this bill?

Mr. NEAL. I believe the issue is one of where we start in developing legislation. Do we start from the basis of a broad prohibition, or do we start from the basis of a narrow prohibition?

Mr. BERMAN. So this is a bargaining position?

Mr. NEAL. Yes, it starts from a narrow position.

Mr. BERMAN. It's a bargaining position.

Mr. PHELPS. Mr. Berman, if I might, my view, and those of my colleagues is that we are not talking about duplication as the only act that should be prohibited.

We believe that quantitatively and qualitatively substantive reproduction and dissemination is the important issue.

And when that harms primary markets, that's the most important part about this, when it creates a market substitution.

Mr. BERMAN. Is that in this draft?

Mr. PHELPS. No, that's the type of language that I would like to move forward. I've had some suggestions.

Mr. BERMAN. So that goes beyond this draft.

Mr. PHELPS. I'm not talking about the draft, no, sir. I'm just simply-I want to make clear that we are not talking about duplication as the only prohibited act, but rather economically important things that create the opportunity for market substitution and harm the initial investment.

Those, we are very clear, should be prohibited, and we think it's very important to have that protection for database producers.

As many of you have noted, we rely heavily on these databases in our own research and scholarship and teaching, and we would not want to stifle that market.

We are simply more concerned about the ability to use the currently worded legislation to narrow down our ability to use even a small parts of these databases. That's our concern.

Mr. BERMAN. Do the universities and major libraries see themselves as having a position fully identical to that of other members

of your coalition which are involved in the commercial dissemination of database compilations.

Mr. PHELPS. I'm not sure we could say fully identical, Mr. Berman, but I think we share a lot of values on that.

Mr. BERMAN. If the committee comes to a conclusion that there are things to be done to protect a lot of what the universities and the libraries want to maintain, but it doesn't go as far as some of the commercial distributors of these databases want, where are you going to be?

Mr. NEAL. My primary interest is to be able to provide an educational and research environment at my university that is high quality and successful, and that is my primary mission, to support

that.

Libraries across the country are primarily interested in that mis

sion.

Mr. BERMAN. If this legislation protects that mission?

Mr. NEAL. That's my core value, yes.

Mr. BERMAN. And it doesn't matter what other parts of your coalition think about it?

Mr. NEAL. We have shared values. I don't believe we're coming to this with totally different perspectives. I think there's a common core that we're trying to advance here.

Most libraries would say the ability to support our users in their work is what we're about our mission.

Mr. BERMAN. You know what I hear a little bit? I hear the WIPO revisited, a coalition of people who don't like or didn't like the WIPO implementation legislation, whatever we call it now, the digital millennium copyright act or something or other.

It's a Republican euphemism. [Laughter.]

Mr. BERMAN. Band together in lock step with the libraries and the universities as the out-front ones, but in the end, it's very illusive, hard to deal with, with some of the issues they don't want to deal with.

That's less of a question that just a comment.

But I'd like to ask the proponents of the legislation one last question. And it was the proponents who talked about it like this.

Pull this down to some very concrete terms. Let's take some publisher who puts together a list of all the restaurants in Southern California.

And they have maybe the addresses, the phone numbers, and the descriptions of those restaurants.

Some other company wants to do a list of Italian restaurants in Southern California. They don't use any of the descriptions. This is a small part of that database, in toto.

And they do their own value-added work with descriptions and ratings of the restaurants and things like that.

Should that be prohibited? They take this original compilation and utilize that, and other things, to find the Italian restaurants. Mr. HENDERSON. If I may, speaking as a real world publisher, I think that system already exists, and the only question, if I were publishing the overall Southern California directory, I would expect from the other person saying, I want to use your material.

Mr. BERMAN. What would you say when you got that call?
Mr. HENDERSON. Probably, so, let's work out an arrangement.

Mr. BERMAN. You want to license them?

Mr. HENDERSON. License them, work out a marketing agreement, whatever, where we can work with something.

Mr. BERMAN. So, in your mind, that database is-you can't extract this relatively small subset of that information as part of a separately, value-added bit of information to do a separate commercial guide?

Mr. HENDERSON. We went through the discovery process, hired staff and put together the marketing. Certainly, I do believe-Mr. BERMAN. I'm just curious. I can understand.

Mr. Duncan?

Mr. HENDERSON. If I may finish my point here, the protection that we need to have, that I'm here seeking is that we're dealing in a whole other world where my friend who had worked out a marketing arrangement to put out the Italian directory could then put it on his website, unless he told me, and e-mail it to his 5,000 best friends out there. That is a whole different world that what we are used to dealing with.

Mr. BERMAN. I know. I referenced that earlier.
It is a different world.

Mr. DUNCAN. Mr. Berman, I think Mr. Henderson's answer shows how far the industry has come to get to where we are today in terms of trying to get this legislation in the practical business world. That's the attitude of database publishers.

We went out, we did it, we worked for it, somebody else wants to use it, to offer a product on the market, and they ought to come to us first and ask permission for that use.

I think that the situation you're describing, as the bill is currently written, could possibly happen without that procedure going forward.

That's one of the reasons that database producers are so concerned about where we began, where we are now, and where we may have to go before the law is passed in this country.

Mr. BERMAN. You think the bill is all ready?

Mr. DUNCAN. It's possible. It depends on how much was taken, whether it harmed the market for the original product. Those questions have to be worked out in cases that may be brought up under this bill.

Mr. BERMAN. Mr. Chairman, maybe we should turn this into a new compulsory license. [Laughter.]

Mr. COBLE. The gentlelady from California.

Ms. LOFGREN. I'm going to be quick because Howard and I have been summoned to the Immigration Subcommittee so they can make a quorum and report out their bill, so I'll just do two things: First, to ask all of the witnesses present, who have an interest in pursuing this further, to take a look at the Department of Commerce testimony and to offer, in writing, their comments to members of the committee.

I'm not saying I agree with everything in that testimony, but I think it's interesting. The administration is trying to play a positive useful role, at least I hope they are, at least I think they are. I thought for a second they were going to do that in encryption. [Laughter.]

Ms. LOFGREN. Secondarily, I was interested in your comment, Professor Lederberg, about the interplay between portions of data and patent law.

I want to make sure that I understand the point you were making, as I'm not sure I do yet.

Then, Mr. Kirk, I know, has a sense of history in the Patent Office, and in patent law, and I'd be interested in his comments, after I fully understand your point.

Mr. LEDERBERG. Well, if I understand the legislation, apart from exceptions that have been carved out for critical comment, and sole use, we are very grateful they've been understood, there is still a broader issue about the protection of knowledge claims.

If I were to compile a list of genes in a given section of a chromosome, I would produce a database containing that information. The factual content of that database would also be covered, and the information that I had provided could not then be taken by others for whatever other use they would want to make of it.

I suggest that that exclusivity of access to new knowledge, invention, and discovery, is the domain of the patent law.

Ms. LOFGREN. Let me follow up, if I may.

Let's say, for example, that they're marching through Chromosome 19, and they're not all the way through, but they've got a lot of stuff out there, and then they've got other people doing other chromosomes.

Somebody goes and then compiles a bunch of this information and puts it online. We're saying that that compilation would be protected if there was a market for it, but you could still go back to Lawrence Livermore and get the Chromosome 19 information you wanted and use it whichever way you wanted if you knew that that's what the source was.

Mr. LEDERBERG. I'm carrying that one step further, and that's why I used the first person. It's quite imaginable that I would have generated the data, and I put them on a database that's the source, and I'd advertise them to the world in this way.

But then there's a no-no that says, no, you can't use any part of it.

Ms. LOFGREN. I see your point. Thank you very much. There was too much of Government information.

Mr. LEDERBERG. And I'm suggesting that there is room for protection of intellectual property of that kind, and it's called the patent system.

Ms. LOFGREN. I see your point. That's a very interesting point. Mr. Kirk, do you have a comment on that?

Mr. KIRK. I'm not quite sure that I totally understand Dr. Lederberg's comment, in that my approach to this, coming from a copyright viewpoint is, you have the idea expression dichotomy. You protect expression under the copyright laws; ideas are the realm of patents.

But you must have something that satisfies the statutory criteria of patentability, new, useful, non-obvious, et cetera.

Ms. LOFGREN. Let me just make a variation on this. Let's say it's not just research in Chromosome 19, but it's manipulating some part of the genome that results, and that is a patentable thing. You publish that in a database.

I think what the Professor is saying is that you can own, without ever going through the patent process, you can own that. We've been thinking about the interplay between copyright and database, but he's suggesting that we need to also think about the interplay between patent and database, and I understand his point now.

It's a way, really, to control the potentially patentable device without ever dealing with the Patent Office through databases. That's what he's suggesting, and I think we need to think through that.

Mr. LEDERBERG. There are ways of avoiding it if there were robust definitions about the invasion of the market of the original producer. It has to be significant taking, a significant part of the whole database, and then isolated facts could not longer be within that framework.

But whereas there have been hortatory remarks that we're only talking about significant invasions, significant removal from the market, I'm advised that the actual language of the bill does not really provide for that.

Losing one customer or the prospect of losing one customer might be sufficient to be an invasion.

Ms. LOFGREN. If I may, in the point you're making, you're not suggesting the remedy; you just are raising the issue, and I'm glad you have, because this is something I never really thought of. I'm not sure what the answer is, but actually whether or not the marketplace issue was dealt with, and we may have to deal with that for the first amendment issues, anyhow, as suggested by Mr. Pincus this morning.

It doesn't obviate the issue you've raised, which is the interplay between patent and database.

Mr. KIRK. If I might, I think we need a little more reflection on this interplay, because I'm not sure that it exists in the way that has recently been discussed.

With a patent, you are fundamentally disclosing this to the world. And what you cannot do is then take that patentable invention and use it in the way that the patent law precludes you from using it for the term of the patent.

It's a rather different animal, so I'm not sure yet that we're on the same page.

Ms. LOFGREN. I'm not either, but I would appreciate your further thought on this, because I certainly value your expertise.

I would yield back, Mr. Chairman.

Mr. COBLE. I thank the lady. The gentleman from Massachusetts.

Mr. DELAHUNT. Thank you, Mr. Chairman.

I might be wrong-and this is on the point that Ms. Lofgren raised-but on page 5 of the legislation, "Subsection [b] individual items of information and other insubstantial parts," I'm just going to read this for both Mr. Kirk and you, Professor:

"Nothing in this chapter shall prevent the extraction or use of an individual item of information or of insubstantial parts for the collection of information in itself. An individual item of information, including a work of authorship, shall not itself be considered a substantial part of a collection of information."

« iepriekšējāTurpināt »