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Mr. NEAL. Thank you.

We believe that there are other alternative approaches that could address the interests of those seeking additional protections for databases while maintaining the important balance between producers and users. We support a more targeted approach, a more narrow approach to additional protections for collections of information.

Let me highlight our concerns with H.R. 354. It is noteworthy that these points also reflect the analysis and correspondence provided to the Members of Congress by Department of Commerce, the Federal Trade Commission and the Department of Justice.

First, the legislation is over broad in scope and it represents in many ways a radical departure from the current intellectual property framework that protects expression, not investment. There is clearly a Constitutional obligation in this country of protecting expression rather than facts.

H.R. 354 would overturn our 200 years of information policy in this country which has consistently supported unfettered access to factual information. Indeed H.R. 354 would provide more protection to databases and collection than is available for copyrighted works.

Second, provisions in H.R. 354 would allow a producer or publisher unprecedented control over uses of databases, including downstream transformative use of facts and Government works in the collection. The success of our Nation's systems of education and scholarship depend upon the ability to use public domain information to combine public and proprietary data to create new databases and to reuse existing data. Researchers typically create new knowledge by building upon the work of others.

The use of the terms "qualitatively” and “quantitatively substantial" leave the librarian and researcher in a quandary. Why? Because the librarian and researcher have no way of knowing which bits of information the producer considers qualitatively or quantitatively substantial. These provisions would greatly discourage the use, re-use and recompilation of data. The FTC shares these concerns.

Third, the exemption for education and research activities are improved but they remain far too narrow. H.R. 354 includes a new provision for reasonable uses which did not appear in the earlier bill. This provision is certainly a step in the right direction in addressing one of the serious concerns of the library community yet the provision as drafted falls short of what we in the library and academic community require to conduct a wide range of our currently permitted research and educational activities.

Section 1403 states that “no person shall be restricted from extracting or using information." Very often libraries and educational institutions are the only market for particular databases or collections. Thus by definition research use of the content of such collections could be held to "harm directly the actual market” making the exemption of little practical value for the vast bulk of research and educational uses.

In addition, the new reasonable use exemption applies only to an "individual act of use or extraction of information.' Researchers routinely build upon prior knowledge. This entails limited use of particular data items. It does not entail copying entire databases and competing head to head in the commercial marketplace. That is not how we conduct ourselves in libraries or in the research community. This current practice would not be covered by this new exemption.

Fueling our concern with this provision is the claim by proponents of the legislation that any harm, even one lost sale, could trigger liability under this statutory regime.

Fourth, the term of protection is, in effect, perpetual, at least for dynamic compilations is electronic form, despite the language that seeks to remedy this problem.

A new provision in H.R. 354 attempts to correct the situation identified in its predecessor. Proponents argue that the mere maintenance of a collection on a server should trigger another 15 year cycle of protection. The new language, however, falls short of fully addressing our concerns. Where dynamic electronic databases are concerned, the older versions, as a practical matter, may be unavailable-making the right of access after 15 years recognized in the language, a hollow one.

Even if the new language were to be interpreted to permit librarians and researchers to extract 15 year old data items from the current version of the collection, there is no system in place where a librarian or user can determine which portion of a database is more than 15 years old, thus no longer subject to protection. It is staggering to imagine the implications of thousands and thousands of researchers and librarians across the country trying to determine if each and every use was permitted.

Fifth, the provision relating to Government information requires modification to ensure a continued robust public domain and to ensure that information in Government mandated databases is not covered by this legislation.

Many statutes mandate the collection and dissemination of certain types of data: securities information, environmental data, labor statistics, for example. Under the terms of this legislation companies which provide data to the Government could exert property rights over this data.

Significant collections of Government mandated information which have been publicly available could become unavailable, available only for a fee or available with significant restraints on use and re-use.

Sixth, provisions do not address concerns regarding sole source databases and provisions in the bill could lead to increased transaction costs in data use as identified by the Department of Commerce.

Mr. Chairman, in conclusion, we believe that if this legislation is enacted in its current form and with the current approach it could fundamentally change the research enterprise and how members of this community use information and at significant cost.

The approach taken in H.R. 354 could lead to a licensing framework where facts, Government information and other information could not be used without permission and additional cost for use.

The ability to tightly control uses of information, including downstream and transformative uses could be at odds with the culture of building upon prior research and could undermine the basic mechanisms of scientific and educational data exchange.

We look very forward to working with the subcommittee on these issues to ensure the appropriate balance among all the communities and sectors so that we have good legislation adopted.

[The complete statement of Mr. Neal follows.]

PREPARED STATEMENT OF JAMES G. NEAL, DEAN, UNIVERSITY LIBRARIES, JOHNS

HOPKINS UNIVERSITY

Mr. Chairman, I am James G. Neal, Dean, University Libraries, Johns Hopkins University and Past President of the Association of Research Libraries and a current member of the Executive Board of the American Library Association. I was a member of the U.S. delegation to the World Intellectual Property Organization in December 1996 as well.

I am testifying today on behalf of five of the Nation's major library associations: the American Association of Law Libraries, the American Library Association, the Association of Research Libraries, the Medical Library Association, and the Special Libraries Association. Collectively, we represent 80,000 librarians in research, academic, law, medical, public, state-based, and special libraries throughout North America. I very much appreciate the opportunity to appear before the Subcommittee again to share our views of H.R. 354, the “Collections of Information Antipiracy Act.”

Mr. Chairman, we appreciate that H.R. 354 includes two new provisions which seek to address, some of the concerns raised during the debate last year on H.R. 2652. These new provisions notwithstanding, with others in the public and private sectors, we have significant continuing concerns with H.R. 354. We believe that H.R. 354 as drafted would benefit a small number of companies while providing no comparable benefits to libraries and the public they serve. The preservation and continuation of balanced rights and privileges in the electronic environment are essential to the free flow of information.

We do believe, however, that there are other alternative approaches that could address the concerns of those seeking additional protections for databases while maintaining the important balance between producers and users. We support a more targeted approach to additional protections for collections of information and would be pleased to work with members of the Subcommittee to achieve such legislation.

Let me detail our concerns with H.R. 354. It is important to note that many of our concerns are reflected in the analyses and correspondence provided to members of Congress by the Department of Commerce (DOC, August 4, 1998), the Federal Trade Commission (FTC, September 28, 1998), and the Department of Justice (DOJ, July 28, 1998). Most if not all of these concerns remain valid, given the similarity between H.R. 2652 and H.R. 354.

KEY CONCERNS

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• The legislation is overbroad in scope and it represents a radical departure

from the current intellectual property framework that protects expression, not

investment. • Provisions in H.R. 354 would allow a producer or publisher unprecedented

control over the uses of information including downstream, transformative

use of facts and government works in the collection. • The exemption for education and research activities, although improved, re

mains far too narrow. • The term of protection is in effect, perpetual, at least for dynamic compila

tions in electronic form, despite the addition of language that seeks to remedy

this problem. • The provision relating to government information requires modification to en

sure a continued, robust public domain and to ensure that information in gov

ernment-mandated databases is not covered by this legislation. • Provisions in H.R. 354 do not address concerns regarding sole source data

bases. And, • Provisions in the bill could lead to increased transaction costs in data use as

noted by the Department of Commerce.

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1) The legislation is overbroad in scope and it represents a radical departure from

the current intellectual property framework that protects expression, not invest

ment. There is a constitutional obligation in the United States of protecting expression rather than facts. This imperative is based on a legal foundation that stimulates in. novations in the public and private sectors, supports the educational process, and "promotes the progress of Science and the useful arts." The new regime proposed in H.R. 354 constitutes a radical departure from our current system-a regime that would permit the protection of factual information by virtue of the investment made in collecting the data. H.R. 354 would overturn over 200 years of our Nation's information policy which has consistently supported unfettered access to factual information. The Department of Justice noted that an earlier version of this legislation "would instead also provide protection to ordinary facts, which are not now subject to copyright protection and may be unsuited to such protection as a matter of constitutional law."! Indeed, H.R. 354 would provide more protection to databases and collections than is available for copyrighted works.

Given this significant departure from current policy, it is crucially important that, as the bill moves through the legislative process, a far more narrow, targeted approach be taken ensure that there are no negative or unintended consequences for a vast public and private sector, including libraries, that properly relies on access to data and government works.

To that end, it will be important to better define key terms. For example, the Department of Justice commented that, many of the critical, proposed statutory terms are not well-defined. Because of the ambiguity of many of these terms, it is impossible to know for certain how wide-ranging H.R. 2652’s applications would

H.R. 354 has not remedied this serious concern. Key terms and concepts remain undefined. For example, what constitutes “a substantial part, measured quantitatively or qualitatively?” What threshold qualifies as “investment of substantial monetary or other resources?” What is "harm” to the actual or potential market?" 2) Provisions in H.R. 354 would allow a producer or publisher unprecedented control

over uses of a database including downstream, transformative use of facts and government works in the collection. The success of our Nation's education and research systems is dependent upon the ability of researchers to access data and information for multiple purposes. Scientific and research progress depends upon the ability to use public domain information, combine public and proprietary data to create new databases, and reuse existing data. Researchers typically create new knowledge by building upon the work of others. This practice, often described as, “standing upon the shoulders of giants” is the basis for our Nation's global leadership in the research and education arenas which fuels all sectors of the economy. Surely, we want this long-standing practice to continue and not be disrupted.

Researchers need access to large and small amounts of data. Yet H.R. 354 prohibits the extraction, or use in commerce, of “a substantial part, measured either quantitatively or qualitatively, of a collection of information. By allowing the database producer to prevent reuses of qualitatively” substantial parts of a database, the legal standard which is at the heart of H.R. 354, the bill effectively prevents the reuse of any information. Why? Because the researcher has no way of knowing which bits of information the producer considers “qualitatively substantial.” As noted by the FTC, "users might not be able to judge whether a particular use of information is qualitatively substantial.”3 The FTC states that, "this definition may not give a user sufficient guidance to reasonably determine whether a particular use of a collection of information would be quantitatively substantial enough to trigger civil and potentially criminal liability.” 4

In addition, libraries have yet another concern with the broad sweep of this legislation. If we have made information lawfully available to a researcher, can we or the researcher be held liable for subsequent reuse of that information by third par

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1 U.S. Department of Justice, Office of Legal Counsel, “Constitutional Concerns Raised by the Collections of Information Antipiracy Act, H.R. 2652,” July 28, 1998, page 4.

2 U.S. Department of Justice, Office of Legal Counsel, “Constitutional Concerns Raised by the Collections of Information Antipiracy Act, H.R. 2652,”July 28, 1998, page 3.

3 Federal Trade Commission, Letter to Chairman Bliley from Chairman Pitofsky, FTC, September 28, 1998, page 4.

* Federal Trade Commission, Letter to Chairman Bliley from Chairman Pitofsky, FTC, September 28, 1998, page 3.

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