The Administration believes that a database protection law generally should not protect government investment in generating data. There are three reasons for this conclusion. First, database protection proposals are premised on the need to provide an incentive for investment in data gathering; in the case of government-funded information, no incentive is needed. If a government decides that it is in the public interest to collect information on smog levels, education scores, or solar flare activity, it will do so. Second, there is a widespread sentiment that once data generation has been paid for with government funds, taxpayers should not have to pay "twice" for the same data.

Finally, the U.S. Government has historically pursued policies that strongly favor public funding of the creation and collection of information. The Administration believes that these policies have contributed greatly to the success of America's high technology and information industries as well as the strength of our democratic society. The Administration has stated elsewhere:

"Government information is a valuable national resource. It provides the public with knowledge of the government, society, and economy-past, present, and future. It is a means to ensure the accountability of government, to manage the government's operations, to maintain the healthy performance of the economy, and is itself a commodity in the marketplace." 13

The Administration believes that the free flow of government-generated data is an important engine of economic growth; it will be an increasingly important resource for any society intent on creating jobs, businesses, and wealth in the "Information Age." Often, government-generated information is also critical to the health and safety of the population; we must ensure that any database protection law does not hamper the dissemination of such information.14

H.R. 354 addresses the issue of government-generated data with the following section 1404(a) exclusion:

"Protection under this chapter shall not extend to collections of information gathered, organized, or maintained by or for a government entity, whether Federal, State, or local, including any employee or agent of such entity, or any person exclusively licensed by such entity, within the scope of the employment, agency, or license. Nothing in this subsection shall preclude protection under this chapter for information gathered, organized, or maintained by such an agent or licensee that is not within the scope of such agency or license, or by a Federal or State educational institution in the course of engaging in education or scholarship."

The Administration believe that this provision serves the general policy goal of making all forms of government information available to the public, but we believe the language is too narrow to satisfy this goal fully.

To begin with, we suggest that the Subcommittee examine existing definitions of "government information" for more inclusive descriptions of government-sponsored data collection. For example, OMB Circular A-130 states that "the definition of 'government information' includes information created, collected, processed, disseminated, or disposed of both by and for the Federal Government." 15 In particular, we believe that the present language does not adequately cover situations in which the government contracts for or provides grants for information gathering. For example, for reasons of accountability, several government contracts expressly state that the private entity is not an "agent" or "licensee" of the government, removing the data gathering from the ambit of section 1404(a). One way to address this would be to include language that information collected "under government contract, grant, or other agreement" is covered by section 1404(a). Another possibility would be inclusion of language making clear that the 1404(a) exclusion also applies to data gathering "funded by the government."

In crafting broad statutory language that includes works created by government contract as government collections of information, a distinction should be drawn between (a) compilations of data made as a necessary element of a government-funded

the results of all these activities, including research funded by the government through grants or contracts, as "government-generated data" or "government-funded data."

13 Office of Management and Budget Circular A-130 Revised [Section 7.b, "Basic Considerations and Assumptions"], available at: http://www.whitehouse.gov/WH/EOP/OMB/html/circular.html, hereinafter "Circular A-130".

14 The U.S. Government's position on the importance of the free exchange of such data has been stated often, including in the "Bromley Statement" on climate change information. See Data Management Global Change Research Policy Statement, Office of Science and Technology Policy, The White House, July 2, 1991.

15 Čircular A-130, Appendix IV “Analysis of Key Sections," section 3 "Analysis."

activity, and (b) compilations of data made by private entities over and above the activity being funded by the government. This appears to be the intent of the section 1404(a) language that:

"Nothing in this subsection shall preclude protection under this chapter for information gathered, organized, or maintained by [a government] agent or licensee that is not within the scope of such agency or license . .

n

This test also should be modified to account for government contractors and grantees who are neither licensees nor agents. In addition, standards for when preparation of a database is mandated by government contract could be developed from existing standards for when government agencies must collect data.16

We also note that 1404(a) is currently worded so that data gathered by state-funded colleges and universities may enjoy protection under the bill. This same provision appeared in H.R. 2652 and the Committee report for that bill indicated that the statutory language was intended to ensure that "institutions that happen to be government owned should not be disadvantaged relative to private institutions when producing databases. . ." The Administration respectfully disagrees with this reasoning; we believe that public universities should fall within a broad definition of government institutions which generate collections of information. Instead of trying to draw a distinction between public universities and other government institutions, it might be more appropriate to concentrate on the distinction between public research and privately funded research at public institutions.17

Higher education institutions are also a fertile ground for situations in which a database's generation is partially funded by the government. In such circumstances, what is fair to the researcher and to the public? The Senator Hatch discussion draft would have placed outside the protection regime those databases "the creation or maintenance of which is substantially funded by [a] government entity." 18 Without conducting a detailed analysis of the Senate discussion draft provisions, we believe in general that databases produced with substantial government funding should be treated like databases of government-generated data, at least in the absence of a specific contrary provision in the government contract, grant, or other agreement.

2. Dissemination of government-generated data and the potential for “capture” Once data has been generated with public funding, there remains the goal of disseminating that data as broadly as possible. For many government agencies, the responsibility to make government-generated information widely available is a statutory obligation.19 Dissemination of government-generated data has always involved

16"Agencies must justify the creation or collection of information based on their statutory functions. Policy statement 8a(2) uses the justification standard-necessary for the proper performance of the function of the agency'-established by the [Paperwork Reduction Act] (44 U.S.C. §3508)." Circular A-130, Appendix IV "Analysis of Key Sections," section 3 "Analysis." 17 This distinction would apply to more than universities. Many government agencies offer their unique capabilities to the private sector on a reimbursable basis. At the Department of Energy, for example, these transactions can be Cooperative Research And Development Agreements (CRADAs) which are "100% funds-in" agreements or "Work for Others" agreements or User Faculty agreement: that is, the private entity provides 100% of the operating funds for the research which is conducted at a government laboratory. We believe that these privately funded research projects could reasonably give rise to collections of information protectable under a database protection law because in judging the equities of the relative contributions to the final database product, there is little or no government investment. Failure to provide protection in such cases would discourage businesses from entering into these agreements. This would sharply curtail the ability of the government to enhance the competitiveness of the private sector.

18 Section 1301(6)(B), Congressional Record, January 19, 1999, at S322.

19 For example, the Agriculture Department works under a directive to "diffuse among people of the United States, useful information on subjects connected with agriculture. * 7 U.S.C. § 2201,. while NASA has a mandate to "provide for the widest practicable and appropriate dissemination of information concerning its activities and the results thereof," 42 U.S.C. section 2473(a)(3) and 42 U.S.C. section 2051 requires the Department of Energy to insure the continued conduct of research and prohibits "any provisions or conditions [on research] which prevent the dissemination of scientific or technical information .." 42 U.S.C. §2051 (d). Statutes such as the Freedom of Information Act and the Government in the Sunshine Act "establish a broad and general obligation on the part of Federal agencies to make government information available to the public and to avoid erecting barriers that impede public access." Circular A-130, Appendix IV "Analysis of Key Sections," section 3 "Analysis." Other departments and programs are under express regulatory mandates to make compilations of information available to the public. For example, in some of their mapping and surveying programs, the Departments of the -Interior and Commerce are under a mandate to provide data products "in a format that can be shared with other Federal agencies and non-Federal users." Office of Management and Budget, Circular A-16 Revised [Coordination of Surveying, Mapping, and Related Spatial Data Activities], section 2.

a mix of public and private resources. Through the Congressionally mandated Federal Depository Library Program, the Federal Government uses public libraries, libraries of public universities, and libraries of private institutions to make government-funded information widely available to citizens. In hundreds of cases ranging from the court system to the U.S. Geological Survey, private entities gather raw, government-generated data and then process, verify, and repackage the data to produce value-added products which are then widely disseminated.

Once there are such commercial products, any decisions to devote public resources to disseminate the raw government data further must be weighed against other demands for government resources.20 If government-generated data does not remain available to the public from government sources, there is the potential for capture of data, with one or a few private entities becoming the "sole source" for important data.

When a U.S. Government work is integrated into a private, value-added product, copyright law requires that the U.S. Government portion remain unprotected and available for copying.21 The Administration has considered whether a parallel solution to the "capture" problem with collections of information would be appropriate: requiring private entities to identify government information in their value-added products, and excluding such information from any database protection schema. The problem with this approach is that a private entity may make a considerable investment in gathering government data from disparate sources, bringing it together, and distributing it. This "value-added" would be lost-and the incentive for it destroyed-if all the data could be freely appropriated on the grounds that it is government-generated data in a private database.

On the other hand, not requiring that the government-generated data integrated into a private product remain outside the database protection schema creates the risk of "capture." Many people believe that this is a significant danger in the case of published court opinions in which there are only two major private publishers.22 Even when government-generated data remains available to the public from the government, it may be much more difficult to obtain than the private, value-added product. If only because the government does not advertise, it may appear that the private entity is the sole source for the government-generated data (both in the raw or value-added form).

The Administration does not have any single proposal that will solve all of these issues. We do, however, have a few specific suggestions to address, to some degree, the capture and sole-source problems with government-generated data.

First, we recognize the importance of keeping government-generated information in the public domain, and urge agencies whose grants, contracts, or other agreements involve a significant amount of data generation to include provisions in the grants, contracts, or other agreements that require grantees, contractors, and the like to make research results available to the public in a non-commercial form. The Administration would support language calling for a study to address this issue and offer recommendations to agencies, either individually or collectively, on how to improve non-commercial access to government-generated data resulting from research. At the same time, our recent experience with legislative mandates to amend OMB

20 This same balance was expressed by Weiss and Backlund as follows: "On the one hand, this means that the Government should not try to duplicate value-added information products produced by the private sector. On the other hand, it means that the government should actively disseminate its information-particularly the raw content from which value-added products are created-at cost and not attempt to exert copyright-like controls or restrictions." Peter N. Weiss and Peter Backlund, International Information Policy in Conflict: Open and Unrestricted Access versus Government Commercialization, in BRIAN KAHIN AND CHARLES NESSON, EDS., BORDERS IN CYBERSPACE (1997), 300, 303.

21 A disclaimer capturing the spirit of this requirement is that found in the U.S. INDUSTRY AND TRADE OUTLOOK (1998) published by McGraw-Hill in cooperation with the Department of Commerce. The disclaimer states: "Portions of this publication contain work prepared by officers and the employees of the United States Government as part of such person's official duties. No copyright is claimed as to any chapter or section whose designated author is an employee of the United States Government, except that copyright is claimed as to tables, graphs, maps or charts in any chapters or sections of this publication if the sole designated source is other than the United States Government."

22 The question of databases of court opinions is complicated by the fact that there are arguably two sets of data intertwined in a commercial volume of court opinions. First, there is the publicly-generated opinions. Second, there is the privately-generated elements, including the pagination of the volume. In Matthew Bender v. West Publishing, 158 F.3d 674, 1998 U.S. App. LEXIS 30790, 48 U.S.P.Q.2d (BNA) 1560, (November 3, 1998), the Second Circuit recently concluded that the pagination in privately published court volumes is non-copyrightable. It appears that H.R. 354 would allow second publishers to note where text starts and stops on different pages as independently observable facts under section 1403(c) of the bill.

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Circular A-110 counsels against any attempts at this time to impose any uniform access requirements on the wide range of government agencies.2

23

Second, we believe that any database protection law along the lines of H.R. 354 should require any private database producer whose database includes a substantial amount of government-generated data to note that fact with reasonably sufficient details about the government source of the data. By this, we mean, for example, "This database was compiled with substantial amounts of data from the National Weather Service, National Oceanic and Atmospheric Administration, Department of Commerce, Washington, D.C." but not "This database was compiled with information from the Department of Defense." In other words, the disclosure should reasonably direct the user to the government source. Defendants could be given an express defense where the database producer has included substantial amounts of government-generated information and failed to make such a disclosure.

We believe that such a requirement (and defense) would eliminate some apparent sole source situations by pointing the database user to alternative sources for the information. If the worth of the database producer's product was truly in the “valueadded," consumers would stay with the private product. Such disclosures might also give government agencies a stronger incentive to maintain the raw data and keep it available to citizens, thus eliminating at least some sole source situations. Generally, we are hopeful that the digital environment and the Internet will, over time, make it possible for government agencies to provide more government-generated information at less cost through public channels.

D. Fourth Principle-Avoid unintended consequences

Any database misappropriation regime must carefully define and describe the protected interests and prohibited activities, so as to avoid unintended consequences; legislation should not affect established contractual relationships and should apply only prospectively and with reasonable notice.

1. Prior contractual relationships

The Administration believes that any database protection law should expressly state that its provisions may not be used to enlarge or limit any rights, obligations, remedies, or practices under agreements entered into prior to the effective date of the law. This is especially important because today, many, if not most, commercially valuable databases are licensed rather than sold. The purpose of such statutory language would be to avoid unbalancing the contractual relationships that have been freely entered into before a database protection bill becomes law. This is a matter of notice and fairness. Providers of databases should not be permitted to assert limitations on use not contemplated at the time of the contract. Similarly, neither database users nor those under contract to produce databases should be able to take unfair advantage of a change in the law to assert rights where existing contracts (including government grants, contracts, or other agreements) may be silent.

2. Prospective Application

We agree wholeheartedly that there should be no liability for conduct prior to the statute's effective date. With respect to situations in which the investment in the database occurred prior to the law's effective date, the situation is more complex. Based on a strict economic analysis, coverage of such databases is not necessarythe investment occurred without the legal protection. On the other hand, there is some, albeit uncertain, legal protection now. Some incentive still exists deriving from copyright's limited protection, what people still believe to be copyright protection, and by state law. On balance, and especially in the context of a misappropriation approach, we believe that section 4 of H.R. 354 takes an appropriate approach toward this issue.

3. The term of protection

Advocates of database protection have proposed database protection terms of up to 25 years. Alternative views have ranged from criticizing 15 years as too long to the minimalist bill's proposal for more limited rights of unlimited duration The Administration currently believes that there is no single, optimal term of protection

23 Statutory requirements of mandatory disclosure of government funded research or government collected information may impinge upon the government's legal and moral obligations to shield some forms of data from disclosure, e.g.. private personal data collected in medical research or proprietary business data shared with the government on the condition of non-disclo

sure.

for the wide range of products subject to protection as "databases" or "collections of information." 24

In the absence of strong indicators of the optimal term for an ex ante incentive structure, we believe there are two virtues to the 15-year term of protection. First, it corresponds to the term of protection established in the European Union's Database Directive; this may facilitate emergence of an international standard while allowing us to concentrate on important issues like permitted uses and the flow of government-generated data. Second, we believe that 10-15 years roughly coincides with a substantial number of data producers beginning to maintain their records in digital formats. The presence of such digital archives of raw data is important in helping to avoid as many sole-source situations as possible.

Finally, the Administration would be troubled by any efforts-present or futureto establish a term of protection exceeding 15 years. While we recognize that there are and will be some data products which have substantial value after 15 years, the purpose of database protection legislation is to provide an incentive for the creation of new databases; we are doubtful that there are or will be many databases developed with a cost-recovery business plan going beyond 15 years.

4. The "perpetual protection" problem

Some critics of database protection have claimed that while proposals like H.R. 354 call for a fixed term of protection (15 years in this case), they actually raise the specter of "perpetual" protection for non-copyrighted databases. We believe that this is a serious issue that requires careful consideration. The critics' concern about "perpetual protection" has two foundations.

a. "Perpetual protection" from "maintaining": the problem with the “organizing" and "maintaining criteria

The first source of concern is the word “maintaining” in the basic prohibition. By including "maintaining" as a ground for protection, some database producers may assert that simply maintaining data collected long ago qualifies that data for continuing protection. H.R. 354 seeks to address this problem with the following provision that differs from H.R. 354's predecessor, H.R. 2652, in the bolded text:

"1408(c) Additional Limitation-No criminal or civil action shall be maintained under this chapter for the extraction or use of all or a substantial part of a collection of information that occurs more than 15 years after the portion of the collection that was extracted or used was first offered for sale or otherwise in commerce, following the investment of resources that qualified that portion of the collection for protection under this chapter that is extracted or used. In no case shall any protection under this chapter resulting from a substantial investment of resources in maintaining a pre-existing collection prevent any use or extraction of information from a copy of the pre-existing collection after the 15 years has expired with respect to the portion of that pre-existing collection that is so used or extracted, and no liability under this chapter shall thereafter attach to such acts or use or extraction."

The final sentence of section 1408(c) apparently is intended to eliminate the possibility of "maintenance" being used to perpetuate protection for data entries.

The Administration agrees with Chairman Coble that this potential problem must be addressed and appreciates the effort to respond to it. We are concerned, however, that this approach is too complex. We believe that a simpler, more predictable legal schema would be produced by eliminating “maintaining" as a ground for protection in the basic prohibition. In fact, we urge the Subcommittee to consider whether either "maintaining" or "organizing" is needed as an event triggering protection under the statute. We believe that substituting "collecting" for "gathering" and making it the sole basis for protected investment would address this perpetual protection issue and better focus the statute.

The present legislation is motivated by the need to correct the loss of protection for "industrious collection" under the "sweat of the brow" doctrine. Adding protection for "organizing" and "maintaining" would expand the protected investment well beyond what was historically allowed by the courts that embraced that doctrine. The Warren Publishing and similar cases involve collecting in the traditional sense, while there is no history or definition for "organizing" or "maintaining." Some aspects of maintaining data such as checking and adding facts are really aspects of "collecting" and should be recognized as such. We also believe that "collecting" data

24 This is similar to economists' efforts to establish the optimal term of protection for copyrighted works where, for example, copyrighted software has a much shorter product cycle than copyrighted books and films which retain significant commercial value for decades.