small businesses who provide vital and timely information to the nearly 3 million farmers who make up the farm-related industries.

I am testifying today because H.R. 1858 does not protect us against most piracy. Our agricultural forecasts products, it is a database that is critical to farmers, particularly in today's low-price times like we are facing. Our economists collect volumes of raw data on acreage, production prices, and livestock from USDA and other government agencies. Then we add value by organizing, updating, and tailoring it specifically to assist farmers in how to profitably market their crops.

Without significant protection for the labor, time, and money involved here, we clearly will not have the resources to do that in the future. And yet under H.R. 1858 if an important part of the database, let's say the section on livestock only, is extracted by pirates, I won't be protected. I am only protected when the whole agricultural forecast database has been duplicated, and even then H.R. 1858 is not much protection.

This is a publication that we put out every year and it was pirated last year, and that is why I have taken particular interest in this issue. I found it on somebody else's Web site. Under H.R. 1858, if the pirate had just altered the guide and added a few small amounts of the data, they could have wiped out my return on my investment for the thousands of hours that our staff spends, the relationships that we have worked so hard to have with firms to have them supply us with their data, and the hundreds of thousands of dollars that we spend collecting and compiling the information.

I think small businesses are particularly threatened under H.R. 1858. As the many recent mergers in our industry indicate, the face of agri business is changing and the number of customers continue to shrink. Today we have licensing agreements to sell multiple copies of our products. Under H.R. 1858 as I understand it, it only protects sale to the public. They can buy one copy and, for example, our feed additive compendium, upload it on their Ethernet or e-mail it to their 5,000 employees, and with a click of a mouse, the publisher is out of business and has lost their market.

If I provide our databases as loss leaders so as to attract customers, H.R. 1858 does not provide any protection whatsoever. Just the other day a consortium of big businesses offered me a nominal amount for important parts of my inventory. They told me that they were going to give it away on the Web just to attract eyeballs to their site, and if we could not come to an agreement on the terms, they would just take my database because of the lack of protection that we currently have. Are we going back to the law of the jungle where there is no protection, small from big, victim from thief? I should hope not.

Further H.R. 1858 establishes protection in such a way I practically have to be bankrupt before I can seek it. Under this bill, I have to incur substantial damages threatening my ability to recover return. By not granting the right to sue and leaving us only to relying on FTC, should it ever get around to pursuing my case, most all publishers will neither be able to survive the piracy permitted by H.R. 1858 or attract investors to maintain or build our businesses.

As you can tell as a small business person, I do not feel that H.R. 1858 covers our needs, not only on the domestic but on the international front. I welcome any questions from the panel and would refer you to my written testimony.

[The prepared statement of Lynn O. Henderson follows:]

PREPARED STATEMENT OF LYNN O. HENDERSON, PRESIDENT, DOANE AGRICULTURAL SERVICES COMPANY ON BEHALF OF THE AGRICULTURAL PUBLISHERS ASSOCIATION Chairman Tauzin and Members of the Subcommittee: Thank you for the opportunity to testify on H.R. 1858.

I am the President of Doane Agricultural Services Company, which for the last 80 years has been one of the leading providers of information, economic forecasts and computer software to the agricultural sectors. Our radio program Agri Talk is carried each day on 115 stations in the farm belt reaching nearly one million listeners. I am also speaking on behalf of the Agriculture Publishers Association, a coalition of mostly small businesses who provide vital and timely information to the nearly 3 million individuals who make up America's farming and farm-related industries.

Piracy comes in many forms, and is especially easy in this age of electronic communication. I'm testifying today because H.R. 1858 does not protect me against most piracy.

Our Agricultural Forecast product is a good example of a database critical to farmers. Our economists collect volumes of raw data on acreage, production prices, crops supply, and livestock from USDA and other government agencies. Then we add value by, organizing, updating and tailoring it specifically to assist farmers in how to profitably market their crops. Without protection for the significant labor, time and money involved here, we clearly will not have the resources to do this. And yet under H.R. 1858, if an important part of the database, most of the sector on live stock, for example, were extracted by pirates, I wouldn't be protected H.R. 1858 only protects me when the whole agricultural forecast product has been duplicated. And even then, H.R. 1858 is not much protection. I have already found Doane's Agri Marketing Services Guide for sale on some one else's web site. Under H.R. 1858, if the pirate had just altered the guide to add a small amount of data pirated from someone else, the pirate could have wiped out my return on the thousands of hours our staff spent, establishing relationships with firms so that they'd agree to participate, and the hundreds of thousands of dollars we spent collecting and compiling the information.

Small businesses are particularly threatened under H.R. 1858. Most agricultural publishers are small businesses. As the many recent mergers in this sector indicate, the face of agribusiness however is starting to look like a consortium of many businesses. Today we have licensing agreements to sell them multiple copies of our products. Under H.R. 1858, which only protects sale "to the public" they can buy just one copy of the Farm Chemical Handbook, upload it on their Ethernet e-mail it to the 5,000 best customers, and with the click of a mouse, deprive its publisher very important markets.

And, if I provide our databases for free as a loss leaders so as to attract customers, H.R. 1858 doesn't provide any protection at all. Just the other day, a big industry consortium offered me a nominal amount for important parts of my inventory. They told me that they were going to give it away on the web-just to attract eyeballs to their site and that if I didn't want the money, they would just take the databases. Are we going back to the law of the jungle where there is no protection, big from small, victim from thief, etc.???

H.R. 1858 also threatens our markets in the scientific research communities. Good farming, safe food, and finding markets for American agriculture depends on research. Good research and good science depend on our databases, such as the Insect Control Guide or the Agricola up to the minute database of all the latest technological and scientific developments, to name a few. Thus, both the non-profit and profit making educational research entities are important markets for us.

By exempting works used in the name of science, research, or education, H.R. 1858 not only severely harms our markets, but also jeopardizes the very research it worships. If we must give away our databases here, what revenue will support the making of the databases on which agriscience and research depend?

Finally, H.R. 1858 establishes protection in such a way I practically have to be bankrupt before I can seek it. Under this bill, I have to incur "substantial damages" threatening my ability to "recover a return".

By not granting a right to sue and leaving us only to rely on FTC, should it ever get around to pursuing our "case", most all agricultural publishers will neither be able to survive the piracy permitted in H.R. 1858 or attract investors necessary to maintain or build their businesses.

Frankly, under H.R. 1858 I think all I'll be doing is spending time and money trying to erase from the net even the few acts of piracy this bill prohibits. The extreme exception in H.R. 1858 grants to OSPs, seems to mean that they don't have to do any thing to clean up their airwaves even when notified of prohibited acts there. If they won't help, small businesses like agricultural publishers will clearly be undone.

Now, I am all for competition and the free market, but I want to meet my competitors in the marketplace, not see my product stolen and then used to undersell me by someone who's invested in nothing but a scanner. We would bring many of our printed services online if we had protection. Label changes in herbicides, for example, must be disseminated quickly for the safety of our farmers, their families and the consumer.

Today one third of the farm industry uses the Internet. Three years from now most will be online. If H.R. 1858 is the law by then, most of today's agricultural publishers won't be there. Pirates will be. They will make money of course, because under pricing us is easy when one doesn't have to spend any money developing the database in the first place and doesn't plan to spend any real money maintaining it. But will they make good databases for farmers? I'd hate to depend on the accuracy of a database on feed additive quality control information if it was not based on substantial investment in keeping it up-to-date and comprehensive.

However, no matter who's on the net, if H.R. 1858 becomes law, you probably won't find help exploring possible markets beyond our national borders. A European grain buyer planning his next move would benefit greatly from access to Doane's information services concerning American farm products. Although, today, we could expand our services via the Internet, we cannot realistically pursue this avenue under H.R. 1858. Last year's European Union directive gave European database producers protection, leaving US businesses in the absence of adequate protection here out in the cold. Today and even under this bill, Europeans could just copy our guides and undersell them to our potential customers abroad. We need legislation, which will help us protect and pursue new markets. People might not have immediately realized it, but meaningful protection for databases will help create new markets for our farmers as well.

If I may, Mr. Chairman, I would like to submit for the record a list of all 97 publications from the Agricultural Publishers Association, who I represent here today, as well as a letter from last year signed by all the major agricultural interest groups asking Congress to pass a strong bill to protect databases from piracy.

Thank you for inviting me to come here today to tell you of how database piracy is threatening all agricultural publishers and their consumers, the American farm

ers.

Mr. TAUZIN. Thank you very much, Mr. Henderson.

And now the gentleman that I welcomed in your absence, Mr. Gregory O'Brien, the chancellor of the University of New Orleans. Again, Mr. O'Brien, it is good to have a home boy here.

STATEMENT OF GREGORY M. O'BRIEN, CHANCELLOR, UNIVERSITY OF NEW ORLEANS, ON BEHALF OF NATIONAL ASSOCIATION OF STATE UNIVERSITIES AND LAND GRANT COLLEGES, ASSOCIATION OF AMERICAN UNIVERSITIES, AND AMERICAN COUNCIL ON EDUCATION

Mr. O'BRIEN. Thank you, Chairman Tauzin. On behalf of the three associations that I represent, the Association of American Universities, the American Council on Education, and the National Association of State Universities and Land Grant Colleges, we are pleased to testify on behalf of H.R. 1858.

Together these three associations represent over 1,500 colleges and universities. These colleges and universities conduct the preponderance of our Nation's academic research.

They produce most of our Nation's Ph.D.'s, as well as masters and professional students. They educate millions of undergraduate students each year. These institutions understand the need to protect databases, and they support legislation to address unfair competition and database piracy.

Indeed, universities and colleges often are creators of collections of information and therefore have a vested interest in protecting the authenticity and the integrity of these collections.

Let me state at the outset that I am not here as a legal scholar, a copyright attorney, nor an information expert, but as a university administrator concerned with maintaining the breadth and quality of our university research and educational programs. We appreciate the subcommittee's consideration of H.R. 1858.

We believe the bill offers an excellent starting point for addressing the database protection issue. The bill provides protection against database piracy while at the same time respecting our single core principle that we must maintain our traditional access to and use of data and information as the cornerstone of scientific and scholarly research, teaching, and learning.

The higher education associations believe it is imperative to preserve the constitutionally based premise of this Nation's information policy, that no one may own facts or information, only prevent the full, unfettered use of facts and information.

Mr. Rightmire referred to the Feist decision. That decision goes on to state that the raw facts in a compilation may be copied at will. This result is neither unfair nor unfortunate. It is the means by which copyright advances progress of science and art. This policy has served the country well.

The United States stands at the forefront of learning, science, and technological advancement, and the Nation has benefited richly from its leadership in international economic competitiveness, life saving advances in medicine and health care, technological superiority in defense, and in a rich quality of life for all of our citi

zens.

We believe that the enlightened information policies of this Nation have played a significant role in sustaining the creativity and productivity of research and education programs that have led to these benefits.

Congress should be wary of any legislation that threatens the public domain status of facts and information because the importance of access for research and education. Indeed, for the effective functioning of our democratic society, congressional decisions about the proper scope of protection for compilations of information should emphasize caution and access to information.

Based on this important principle, there are two critical standards of any legislation to protect compilations of information should meet. First, protection should be targeted to deal with specifically identified wrongful conduct. Second, protection should be addressed to clearly define subject matter and to be limited to compilations as compilations and not to the facts or information contained therein.

Let me discuss H.R. 1858 in the context of these standards. First, any new protection should be targeted to deal with specifically wrongful conduct. H.R. 1858 does just that. It prohibits the dis

semination to the public of a copy of a database in a manner that causes substantial competitive harm. This is a reasonable response to the concerns identified by those who seek added protection for their databases.

Second, H.R. 1858 is intended to protect a clearly defined class of databases and not the facts or the information contained in those databases. However, we do believe there could be some adjustments in the definition of databases to clarify the distinction between other works that may have certain characteristics of databases but should not be considered as databases under that definition.

For example, the definition does not expressly exclude works of nonfiction such as biographies and history articles that could be considered as collecting discrete items of information for the purpose of providing access to that information. We recommend that this definition be clarified so that such works would not be considered as compilations of information.

Let me emphasize that we do not seek a free ride on the work of others. As has been stated earlier, our institutions pay for databases and will continue to do so. Our primary concern is whether additional legal protection is necessary or justified. Overly broad legislation threatens the traditional educational and scientific activities which are essential to the missions of our institutions and the progress of our economy.

We believe the answer is legislation such as H.R. 1858 that offers protection against unfair competition and database piracy without jeopardizing the traditional principles of access to information.

We commend the committee for proceeding carefully to craft legislation targeted at solving the specific identified problem. To act more broadly would result in legislation with unintended consequences which would have a chilling effect on research collaboration, educational enrichment, and economic productivity. Thank you, Mr. Chairman.

[The prepared statement of Gregory M. O'Brien follows:]

PREPARED STATEMENT OF GREGORY O'BRIEN, CHANCELLOR, UNIVERSITY OF NEW ORLEANS, ON BEHALF OF THE ASSOCIATION OF AMERICAN UNIVERSITIES, THE AMERICAN COUNCIL ON EDUCATION, AND THE NATIONAL ASSOCIATION OF STATE UNIVERSITIES AND LAND-GRANT COLLEGES

I am Gregory O'Brien, Chancellor of the University of New Orleans. I appreciate this opportunity to testify before the Subcommittee on H.R. 1858, "Consumer and Investor Access to Information Act of 1999." My testimony is presented on behalf of the Association of American Universities, the American Council on Education, and the National Association of State Universities and Land-Grant Colleges, which together represent over 1,500 colleges and universities. The colleges and universities that are members of these Associations conduct the preponderance of the nation's academic research, produce most of its Ph.D.s as well as Master's and professional students, and educate millions of undergraduates each year. These institutions understand the need to protect databases, and they support legislation targeted to address unfair competition and database-piracy. Indeed, universities and colleges often are creators of collections of information and have a vested interest in protecting the authenticity and integrity of those collections.

Let me state at the outset that I am not here as legal scholar, copyright attorney, or information expert but as a university administrator concerned with maintaining the breadth and quality of our university research and education programs. We appreciate the Subcommittee's consideration of H.R. 1858. We believe the bill offers an excellent starting point for addressing the database protection issue. The bill provides protection against database piracy, while at the same time respecting our single core principle that we must maintain our traditional access to and use of data