Intl Copyright Pil 2004

International
Copyright Law
William Fisher
June 23, 2004
© 2004. All rights reserved.

The Sectors of Intellectual Property Law
Patent
Copyright Patent
Copyright Patent
Trademark &
Unfair Competition
Copyright Patent
Trademark &
Right of Unfair Competition
Publicity
Copyright Patent
Trademark &
Right of Unfair Competition Trade
Publicity Secrets
Intellectual Property Protection for Industrial
Designs
Copyright Patent
Copyrights
for Useful
Objects
Trademark &
Publicity Secrets
Designs
Copyright Patent
Design
Patents
Trademark &
Publicity Secrets
Designs
Copyright Patent
Trademark &
Publicity Secrets
Trade Dress
Designs
Copyright Patent
Copyrights Design
for Useful Patents
Objects
Trademark &
Publicity Secrets
Trade Dress
Copyright Patent
Trademark &
Publicity Secrets
Basic Copyright Law
• Long-term, medium protection for “original
forms of expression”
• “Original” = independently created +
minimal degree of creativity (Feist)
• “Original” does not require novelty,
aesthetic merit, or truth
Examples of Things Protected by
Copyright
• literary works;
• musical works;
• dramatic works;
• pantomimes and choreographic works;
• pictorial, graphic, and sculptural works;
• motion pictures and audiovisual works;
• sound recordings;
• architectural works;
• compilations
• computer programs
Idea/Expression Distinction
• Not copyrightable • Copyrightable
– Ideas – Expression
– Facts – detailed plots
– "truths of a science"
– distinctive
– "methods of an art"
characters
– "system of bookkeeping"
– generic plots
– generic characters
– research
Statutory Entitlements
(1) Reproduction
(2) Derivative Works
(3) First Distribution
(4) Public Performance
(5) Public Display
Proving Infringement
• Copying
– Defendant’s admission
– Evidence of access + similarities
– “striking similarity”
– common errors
• “Improper Appropriation”
– “substantial similarity of expression”
– lay audience test
– scenes a faire doctrine
Fair Use Doctrine
Supreme-Court Case Law
• Sony v. Universal City Studios (1984)
Compensation System for Network Broadcasts of Copyrighted Programs
Studios
Hold copyrights
in movies & shows
broadcast Studios
licenses
Hold copyrights
in movies & shows
Networks
broadcast Studios
licenses
Networks
free programming
(with embedded ads)
Public
Advertisers broadcast Studios

licenses
Networks
higher prices
for products free programming
(with embedded ads)
Public

licenses
price of ads
Networks
higher prices
(with embedded ads)
Public

licenses
price of ads
license fees
Networks
higher prices
(with embedded ads)
Public

licenses
price of ads
license fees
Networks
higher prices
(with embedded ads)
Public
VCRs
cost of VCRs Sony


licenses
price of ads
license fees
Networks
higher prices
(with embedded ads)
Public
VCRs
cost of VCRs Sony


licenses
price of ads
license fees
Networks
higher prices
(with embedded ads)
Public
VCRs
cost of VCRs Sony


licenses
price of ads
license fees
Networks
higher prices
(with embedded ads)
Public
VCRs
cost of VCRs Sony


licenses
price of ads
license fees
Networks
higher prices
(with embedded ads)
Public
VCRs
cost of VCRs Sony


licenses
price of ads
license fees
Networks
higher prices
(with embedded ads) ?
Public
VCRs
cost of VCRs Sony

Fair Use Doctrine
Supreme-Court Case Law
• Sony v. Universal City Studios (1984)
– time shifting is fair use
– manufacturing VCRs is not contributory copyright
infringement
• Harper & Row v. Nation Enterprises (1985)
– reproducing juicy excerpts of Ford’s autobiography is
not fair use
• Campbell v. Acuff-Rose (1994)
– rap parody of “Oh, Pretty Woman” is fair use
Fair Use Doctrine
• Purpose and Character of the Use
– commercial use disfavored
– transformative uses preferred
– parody strongly preferred
– propriety of defendant’s conduct relevant
• Nature of the Copyrighted Work
– fictional works/factual works
– unpublished/published
Intensity of Copyright Protection
unpublished
published
unpublished
fact fiction
published
Fair Use Doctrine
• Purpose and Character of the Use
– commercial use disfavored
– transformative uses preferred
– parody strongly preferred
– propriety of defendant’s conduct relevant
• Nature of the Copyrighted Work
– fictional works/factual works
– unpublished/published
• Amount and importance of the portion used
• Impact on Potential Market
– rival definitions of “potential market”
– only substitution effects are cognizable
Topics
• Basic Copyright Law
• International Copyright Agreements
• Case Studies
– Software Protection
– Database Protection
– Moral Rights
Topics
• Basic Copyright Law
• International Copyright Agreements
• Case Studies
– Software Protection
– Database Protection
– Moral Rights
Major Agreements
(Potentially) Global Agreements:
 Berne Convention (1886-1971)
 Universal Copyright Convention (1952)
 WIPO Copyright Treaty (1996)
 TRIPS (1994)
 Rome Convention (1961)
Regional Agreements
 EC Directives
 NAFTA (1992)
Bilateral Agreements
 E.g., US/Germany – Atlas Films
Berne Convention -- chronology
• 1858-1885: Preliminary negotiation
• 1886: Original Berne Convention (10 countries)
• 1896: Paris Revision (13)
• 1908: Berlin Revision (18)
• 1914: Berne Revision (27)
• 1928: Rome Revision (36)
• 1948: Brussels Revision (37)
• 1967: Stockholm Revision (59)
• 1971: Paris Revision (63)
10 countries
Berne Convention -- 1886

• National treatment
– Signatories give citizens of other signatories same treatment
as their own citizens
– Except as to term of protection
• Protected Works:
– books; pamphlets; drama; music; design; painting;
sculpture; maps; 3D works in geography and architecture
– No protection for photos; political articles; news
• Exclusive rights:
– 10-year translation right
13 countries

– Signatories give citizens of other signatories same treatment
as their own citizens
– books; pamphlets; drama; music; design; painting; sculpture;
maps; 3D works in geography and architecture
– No protection for photos; political articles; news
– translation right for term of original work
18 countries

– Signatories give citizens of other signatories same treatment as
their own citizens
• No formalities as condition of protection
– books; pamphlets; drama; music; design; painting; sculpture; maps;
3D works in geography and architecture; photos; choreography;
architecture
– No protection for political articles; news
– translation right for term of original work; recording right for
music; cinematograhic right
27 countries

their own citizens
– Discrimination against authors from non-member countries
permitted
architecture
music; cinematograhic right
36 countries

their own citizens
permitted
architecture; lectures
music; cinematograhic right; moral right; broadcasting right;
adaptation right
36 countries

their own citizens
permitted
adaptation right
Varieties of “Moral Rights”
• Integrity
• Attribution
• Divulgation
• Withdrawal
• Droit de Suite
Article 6 bis of the Berne
Convention:
“Independently of the author's economic
rights, and even after the transfer of the said
rights, the author shall have the right to
claim authorship of the work and to object
to any distortion, mutilation or other
modification of, or other derogatory action
in relation to, the said work, which would
be prejudicial to his honor or reputation.”
36 countries

their own citizens
permitted
adaptation right
37 countries

– Signatories give citizens of other signatories same treatment as their
own citizens
permitted
– translation right for term of original work; recording right for music;
cinematograhic right; moral right; broadcasting right (TV);
adaptation right; public performance right; optional droit de suite
• Minimum term: LOA + 50 years
59 countries
their own citizens
Stalemate on substance

permitted
music; cinematograhic right; moral right; broadcasting right (TV);
adaptation right; public performance right; optional droit de suite
• Formation of WIPO
63 countries
– Signatories give citizens of other signatories same treatment as their own
citizens
– Discrimination against authors from non-member countries permitted
– books; pamphlets; drama; music; design; painting; sculpture; maps; 3D
works in geography and architecture; photos; choreography; architecture;
lectures; folklore; legitimation system for films
cinematograhic right; moral right; broadcasting right (TV); adaptation right;
public performance right; optional droit de suite; reproduction right
63 countries
citizens
http://www.wipo.org/treaties/ip/berne/index.html currently 150 countries
citizens
http://www2.unesco.org/clt-bv/html_eng/01universalcopy.htm 36 countries
Universal Copyright Convention

(1952; revised 1971)
• National Treatment principle
• Members must provide “adequate and effective
protection” for copyright
• Formalities permitted as precondition for
protection
• Minimum term: LOA + 25
• Exceptions permitted that do not “that do not
conflict with the spirit and provisions of this
Convention”
40 countries
Rome Convention (1961)

• Performers’ rights include: broadcast of a
performance; fixation of a performance;
reproduction of a fixation
• Producers of phonograms have exclusive rights to
reproduce them
• Broadcasters have exclusive rights to fix or
reproduce fixations of their broadcasts
• Article 12: Performers and producers must be
paid “equitable remuneration” when phonograms
are broadcast
• Minimum term: 20 years
http://www.wipo.org/treaties/ip/rome/ currently 76 countries
Rome Convention (1961)

• Performers’ rights include: broadcast of a
performance; fixation of a performance;
reproduction of a fixation
• Producers of phonograms have exclusive rights to
reproduce them
• Broadcasters have exclusive rights to fix or
reproduce fixations of their broadcasts
• Article 12: Performers and producers must be
paid “equitable remuneration” when phonograms
are broadcast
• Minimum term: 20 years
Other “Neighboring Rights”
Agreements
• Geneva Phonograms Convention (1971)
• Brussels Satellite Convention (1974)
• WIPO Performances and Phonograms
Treaty (1996)
currently 146 countries
TRIPS -- Copyright
• Article 9:
– Incorporate Berne Convention, Arts. 1-21,
except 6bis
– Idea/expression distinction
• Article 10:
– Computer programs protected (both source and
object code)
– Intellectually creative aspects of databases
protected – not data itself
TRIPS -- Copyright
• Article 11:
– Authors of computer programs and films may
authorize or forbid commercial rentals
• Article 12:
– Minimum terms for works not tied to LOA is
50 years
• Article 13:
– Exceptions shall be limited to cases that do not
conflict with normal exploitation or
unreasonably prejudice legitimate interests
TRIPS -- Copyright
• Article 14:
– Performers control fixation and broadcasts
– Producers of phonograms control reproduction
and commercial rentals
– Broadcasters control fixation, reproduction,
rebroadcasts
– Performers and producers get minimum term of
protection of 50 years
– Exceptions permitted to extent of Rome
Convention
Sore Spots in International
Copyright Law
• Authorship
• Creativity
• Duration
• Useful Objects
• Software
• Public Performances
• Neighboring Rights
• Government documents
• Fair Use
• Moral Rights
Copyright Law
• Authorship
• Creativity
Territoriality Principle
• Duration
• Useful Objects Treatment of
• Software “works for hire”;
• Public Performances Priority rules
• Fair Use
• Moral Rights
Copyright Law
• Authorship
• Creativity
• Duration Feist (US)
• Useful Objects Tele-Direct (Canada)
• Software Schricker (Germany)
• Fair Use
• Moral Rights
Copyright Law
• Authorship
• Creativity
• Duration
• Useful Objects Territoriality Principle
--Atlas Film (Germany)
• Software
• Public Performances UCC, art. IV
• Neighboring Rights Berne, art. 7(8)
• Government documents EC Term Directive
--LOA + 70
• Fair Use
• Moral Rights Sonny Bono
--LOA + 70; Eldred
Copyright Law
• Authorship
• Creativity
• Duration
• Useful Objects Utility Models;
• Software Conceptual Separability;
• Public Performances Overlap with creativity
• Neighboring Rights requirements
• Fair Use
• Moral Rights
Copyright Law
• Authorship
• Creativity
• Duration
• Useful Objects Utility Models;
• Software Conceptual Separability;
• Public Performances Overlap with creativity
• Neighboring Rights requirements
• Fair Use
• Moral Rights
Copyright Law
• Authorship
• Creativity
• Duration
• Useful Objects CONTU (US)
• Software EC Software Directive
• Public Performances TRIPS Art. 10
• Fair Use
• Moral Rights
Copyright Law
• Authorship
• Creativity
• Duration
• Useful Objects
Berne Arts. 2, 11bis
• Software
Rome Art. 12;
1992 EC Directive;
DPRA & DMCA (US)
CARP (US)
• Fair Use
• Moral Rights
Copyright Law
• Authorship
• Creativity
• Duration
• Useful Objects
European blank-
• Software
tape systems;
• Neighboring Rights Sound recordings
• Fair Use
• Moral Rights
Copyright Law
• Authorship
• Creativity
• Duration
• Useful Objects
• Software
• Public Performances Germany, Japan,
• Neighboring Rights & US withhold ©
• Government documents Great Britain: Crown
• Fair Use and Parliamentary
• Moral Rights copyright
Copyright Law
• Authorship
• Creativity
• Duration
• Useful Objects
• Software
Is TRIPs compatible
with US fair use?
• Fair Use
Should TRIPs
• Moral Rights
mandate fair use?
Fair Use?
Berne Convention, Article 10
(1) It shall be permissible to make quotations from a work which has already
been lawfully made available to the public, provided that their making is
compatible with fair practice, and their extent does not exceed that
justified by the purpose, including quotations from newspaper articles and
periodicals in the form of press summaries.
(2) It shall be a matter for legislation in the countries of the Union, and for
special agreements existing or to be concluded between them, to permit
the utilization, to the extent justified by the purpose, of literary or artistic
works by way of illustration in publications, broadcasts or sound or visual
recordings for teaching, provided such utilization is compatible with fair
practice.
Fair Use?
Berne Convention, Article 10
(1) It shall be permissible to make quotations from a work which has already
been lawfully made available to the public, provided that their making is
compatible with fair practice, and their extent does not exceed that
justified by the purpose, including quotations from newspaper articles and
periodicals in the form of press summaries.
(2) It shall be a matter for legislation in the countries of the Union, and for
special agreements existing or to be concluded between them, to permit
the utilization, to the extent justified by the purpose, of literary or artistic
works by way of illustration in publications, broadcasts or sound or visual
recordings for teaching, provided such utilization is compatible with fair
practice.
Fair Use?
Berne Convention, Article 10bis
(1) It shall be a matter for legislation in the countries of the Union to permit the
reproduction by the press, the broadcasting or the communication to the public by
wire, of articles published in newspapers or periodicals on current economic,
political or religious topics, and of broadcast works of the same character, in cases
in which the reproduction, broadcasting or such communication thereof is not
expressly reserved. Nevertheless, the source must always be clearly indicated; the
legal consequences of a breach of this obligation shall be determined by the
legislation of the country where protection is claimed.
(2) It shall also be a matter for legislation in the countries of the Union to determine
the conditions under which, for the purpose of reporting current events by means
of photography, cinematography, broadcasting or communication to the public by
wire,literary or artistic works seen or heard in the course of the event may, to the
extent justified by the informatory purpose, be reproduced and made available to
the public.
Fair Use?
Berne Convention, Article 10bis
(1) It shall be a matter for legislation in the countries of the Union to permit the
reproduction by the press, the broadcasting or the communication to the public by
wire, of articles published in newspapers or periodicals on current economic,
political or religious topics, and of broadcast works of the same character, in cases
in which the reproduction, broadcasting or such communication thereof is not
expressly reserved. Nevertheless, the source must always be clearly indicated; the
legal consequences of a breach of this obligation shall be determined by the
legislation of the country where protection is claimed.
(2) It shall also be a matter for legislation in the countries of the Union to determine
the conditions under which, for the purpose of reporting current events by means
of photography, cinematography, broadcasting or communication to the public by
wire,literary or artistic works seen or heard in the course of the event may, to the
extent justified by the informatory purpose, be reproduced and made available to
the public.
Fair Use?
TRIPS, Article 13
Members shall confine limitations or exceptions to
exclusive rights to certain special cases which do not
conflict with a normal exploitation of the work and
do not unreasonably prejudice the legitimate
interests of the right holder.
Copyright Law
• Authorship
• Creativity
• Duration
• Useful Objects
• Software
Is TRIPs compatible
With US fair use?
• Fair Use
Should TRIPs
• Moral Rights
Mandate fair use?
Copyright Law
• Authorship Issues include:
• Creativity Duration;
• Duration Alienability;
Preconditions to
• Useful Objects integrity right;
• Software Responsibility
• Public Performances of heirs/devisees
• Government documents Berne 6bis
• Fair Use TRIPS exclusion
• Moral Rights
Copyright Law
• Authorship
• Creativity
• Duration
• Useful Objects
• Software
• Fair Use
• Moral Rights
Copyright Law
• Authorship
• Creativity
drive toward
• Duration
harmonization
• Useful Objects
by selecting most
• Software
author-protective
option on each
issue
• Fair Use
• Moral Rights
Possible Goals of International Copyright
• Political Democracy (Netanel)
• Economic Efficiency
– Reducing barriers to free trade
• Cultural Vitality
– Semiotic democracy
• Distributive Justice
– Distribute justice across countries
– Egalitarianism (economic democracy)
– Respect artists’ rights
– Respect natural rights
• Universal Right to education
Dahl’s definition of Political
Democracy
1. Elected officials govern
2. Frequent and fair elections
3. Universal adult suffrage
4. Universal qualification for elective office
5. Freedom of expression
6. Available alternative sources of information
7. Freedom of association
Dahl’s definition of Political
Democracy
1. Elected officials govern
2. Frequent and fair elections
3. Universal adult suffrage
4. Universal qualification for elective office
5. Freedom of expression
6. Available alternative sources of information
7. Freedom of association
Possible Causal Connections
Democracy-
enhancing
Democracy-
consolidating
Democracy-
inducing
Democracy- Impact of Copyright
enhancing • Foster free flow of
information and
diversity of expression
Democracy-
consolidating • Promote independent
sector of artists &
publishers
Democracy-
• Venerate individual
inducing
innovation and
expression
Democracy- Impact of Copyright
enhancing • Foster free flow of
information and
? diversity of expression
Democracy-
consolidating • Promote independent
? sector of artists &
? publishers
Democracy-
• Venerate individual
inducing
innovation and
expression
Embodiments of the “Democratic
Entitlement”
• ICCPR
• ECHR
• Charter of OAS
• ACHR
• African Charter on Human and People’s Rights
• Charter of Paris
• Moscow Document
• International Covenant on Economic, Social and
Cultural Rights (ICESCR)
Implications of the Democracy /
Free Speech Principles
• Compel countries not members of Berne or WTO
to adopt copyright systems
• Mandatory limits on copyright:
– Temporal limits
– Idea/fact/expression distinction
– Some fair-use exceptions
– Exception for transient, incidental reproduction
– No prior restraints or punitive damages
• Interpret Berne/TRIPS provisions
– E.g., Art. 13
– Permissible “cultural exceptions”
Legal Protection
for Databases
What is a Database?
• WIPO Draft Treaty Definition: “‘database’ means a
collection of independent works, data or other materials
arranged in a systematic or methodical way and capable
of being individually accessed by electronic or other
means”
• Examples:
– nationwide telephone directory
– compilation of financial data on companies
– Lexis/Nexis compilation of public-domain materials
Possible Sources of Legal
Protection
• Copyright
• Misappropriation Doctrine
• Contract
• Sui Generis Legislation or Treaty
• Encryption/Anti-“Black Box” Legislation
• Trespass Doctrine
• Branding – e.g., Lexis; Westlaw
Protection
• Copyright
• Contract
To secure copyright protection for a
database, one must show:
• DB is within subject matter coverage
• DB is fixed in a tangible medium of
expression
• DB is sufficiently “original”
– Feist problem
– TRIPS Article 10(2)
Protection
• Copyright
• Contract
INS v. AP (1918)
Constriction Expansion
• Cheney Bros. (CA2 1929)
• Radio broadcast cases
(1932-1955)
• Erie RR (1938) • Metropolitan Opera (NY
1950)
• Pottstown News (PA 1963)
• NFL v. Del. (1977) • Bond Buyer (NY 1966)
• Dow Jones (Ill 1983)
• US Sporting Products (Tex
• NBA (1997) 1993)
• Lynch, Jones (NY 1998)
• Alcatel (1999) • Internet “framing” cases?
Facts of NBA (1997)
NBA game
Facts of NBA (1997)
NBA game
Live audience
TV audience
Radio Audience
Facts of NBA (1997)
NBA game
Live audience
TV audience (STATS reporters)
Radio Audience (STATS reporters)

Facts of NBA (1997)
NBA game
Live audience
STATS computer
Facts of NBA (1997)
NBA game
Live audience
STATS computer
Satellite
Facts of NBA (1997)
NBA game
Live audience
Motorola pagers STATS computer
Satellite
Facts of NBA (1997)
NBA game
Live audience
Users Motorola pagers STATS computer
Satellite
NBA (CA2 1997)
A “hot news” misappropriation claim survives
preemption iff:
• P generates or creates information at some
cost
• Information is highly time-sensitive
• D “free rides” on P’s efforts
• D competes directly with P
• such free-riding would threaten the existence
or quality of the service P provides
Protection
• Copyright
• Contract
Contract
• Use Restrictions in Ordinary Contracts or
Licenses
• Shrink-wrap licenses
– ProCD
Excerpt from Martindale-Hubbell Website
"You are hereby granted a nonexclusive, nontransferable,
limited license to view, reproduce, print, and distribute
insignificant portions of materials retrieved from this Site
provided (a) it is used only for informational, non-
commercial purposes, (b) you do not remove or obscure
the copyright notice or other notices. Except as expressly
provided above, no part of this Site, including but not
limited to materials retrieved therefrom and the underlying
code, may be reproduced, republished, copied, transmitted,
or distributed in any form or by any means. In no event
shall materials from this Site be stored in any information
storage and retrieval system without prior written
permission Martindale-Hubbell."
Excerpt from Martindale-Hubbell Website
"You are hereby granted a nonexclusive, nontransferable,
limited license to view, reproduce, print, and distribute
insignificant portions of materials retrieved from this Site
provided (a) it is used only for informational, non-
commercial purposes, (b) you do not remove or obscure
the copyright notice or other notices. Except as expressly
provided above, no part of this Site, including but not
limited to materials retrieved therefrom and the underlying
code, may be reproduced, republished, copied, transmitted,
or distributed in any form or by any means. In no event
shall materials from this Site be stored in any information
storage and retrieval system without prior written
permission Martindale-Hubbell."
Limitations of Contractual Protection
Creator
Purchaser
contract with
valid restraints
on use and
alienation
Creator
Purchaser
contract with
valid restraints
on use and
alienation Rival
conveyance
without
restrictions
Creator
Purchaser
contract with
valid restraints
on use and
alienation Rival
conveyance
without
restrictions distribution Public
--e.g., over
internet
breach of contract
Creator (damages and injunction)
Purchaser
contract with
valid restraints
on use and
alienation Rival
conveyance
without
--e.g., over
internet
Creator claim for tortious interference

with contractual relations?
Purchaser
contract with
valid restraints
on use and
alienation Rival
conveyance
without
--e.g., over
internet
Creator No practical remedy
Purchaser
contract with
valid restraints
on use and
alienation Rival
conveyance
without
--e.g., over
internet
Protection
• Copyright
• Contract
Efforts to Secure Sui Generis
Protection
• EC Directive 96/9
• Federal legislation in the United States
EEC Directive 96/9 -- Coverage
• Applies to any “collection of independent works,
data or other materials arranged in a systematic or
methodical way and individually accessible by
electronic or other means."
• Plaintiff must prove: “that there has been
qualitatively and/or quantitatively a substantial
investment in either the obtaining, verification or
presentation of the contents”
EC Directive 96/9 -- Entitlements
• No unauthorized extraction or reutilization
of any part of the database
• “Extraction” = “the permanent or temporary
transfer of all or a substantial part of the contents of a
database to another medium by any means or in any
form”
• “Reutilization” = “any form of making available to
the public all or a substantial part of the contents of a
database by the distribution of copies, by renting, by
on-line or other forms of transmission.”
• No first-sale doctrine
• No compulsory licenses
EC Directive 96/9 -- Privileges
• Copying of “insubstantial” portions for any
purpose
– unless it conflicts with the “normal exploitation”
of the DB
• Member states may permit extraction or
reutilization for noncommercial teaching or
scientific research if credit is given
• Member states may permit extraction or
reutilization of “substantial” portions for
“private purposes”
EC Directive 96/9 -- Duration
• 15 years
• additional 15 years each time the database is
“substantially modified”
Proposals for American Sui-
Generis Legislation
• 104th Congress: Database Investment and
Intellectual Property Antipiracy Act of 1996
• 105th Congress: HR 2652 passed the House;
S 2291 died in Senate
• 106th Congress: Two House bills pending:
– HR 354: Collections of Information Antipiracy
Act, introduced 1/19/99; approved by House
Judiciary Comm.
– HR 1858: Comsumer and Investor Access to
Information Act of 1999, introduced 5/19/99
H.R. 354
• Protected databases include: information
that has been collected and has been
organized for the purpose of bringing
discrete items of information together in
one place or through one source so that
users may access them
– specific exception for works of narrative
literary prose, but inclusion of collections of
such works
H.R. 1858
• Protected databases include: a collection of discrete
items of information that have been collected and
organized in a single place, or in such a way as to be
accessible through a single source, through the
investment of substantial monetary or other resources,
for the purpose of providing access to those discrete
items of information by users of the database.
– However, a discrete section of a database that contains
multiple discrete items of information may also be treated as a
database.
H.R. 354
• Information: facts, data, works of
authorship or any other intangible material
capable of being gathered and organized in
a systematic way
– specifically includes works of authorship in
definition, but states that it does not provide
any greater protection than copyright to works
of authorship included in collections, other than
a work that is itself a collection
H.R. 1858
• Information: facts, data, or any other
intangible material capable of being
collected or organized in a systematic way,
with the exception of works of authorship
H.R. 354
• Exclusions:
– Government databases
– real-time market information
– computer programs
– databases for facilitating digital online
communications
H.R. 1858
• Exclusions:
– Government databases
– computer programs
– databases to facilitate internet communications
– Nonprotectable subject matter: individual ideas, facts,
procedures, systems, methods of operation, concepts,
principles or discoveries
– Preexisting databases
– Works of authorship
H.R. 354
• Prohibitions:
– Making available or extracting to make
available all or a substantial part of a collection
of information, causing material harm to the
primary or related market for the product of the
other party or a successor in interest
– Extraction of a substantial part of a collection
of information so as to cause material harm to
the primary market
H.R. 354
• Prohibitions:
– Making available or extracting to make
available all or a substantial part of a collection
of information, causing material harm to the
primary or related market for the product of the
other party or a successor in interest
– Extraction of a substantial part of a collection
of information so as to cause material harm to
the primary market
H.R. 354
• Primary market: all markets in which the product is
offered or in which the party derives or reasonably
expects to derive direct or indirect revenue
• Related market: [1] any market in which similar
products are offered and in which the parties offering
similar products derive or expect to derive direct or
indirect revenue or [2] any market in which the
protected party has taken demonstrable steps to offer a
product within a short period of time and with the
reasonable expectation to derive direct or indirect
revenue
H.R. 1858
• Prohibition:
– Distribution of duplicates: sale or distribution
to the public of a database that is the duplicate
of a database (substantially the same database
made by extracting the information from the
original) collected and organized by another
person, in competition with that other database.
H.R. 1858
• Prohibition:
– Distribution of duplicates: sale or distribution
to the public of a database that is the duplicate
of a database (substantially the same database
made by extracting the information from the
original) collected and organized by another
person, in competition with that other database.
H.R. 1858
• In competition with: the duplicate database
displaces substantial sales or licenses of the
original database and significantly threatens
the opportunity to recover a return on the
investment in the collecting and organizing
of the database
H.R. 354
• Privileges:
– Use of Individual items of information or
insubstantial portions of the compilation
– The lawful owner of a copy of the original
collection may sell or transfer that copy
– News reporting
– Nonprofit educational, scientific or research
purposes that do not materially harm the
primary market
H.R. 354
• Privileges:
– Reasonable use for illustration, explanation,
example, comment, criticism, teaching, research or
analysis
commercial or nonprofit purpose
amount extracted appropriate to purpose
good faith
extent of incorporation into an independent work and
degree of difference between independent and original
works
development for and marketing in the same field as the
original
H.R. 1858
• Privileges:
– News reporting (except time-sensitive material
collected by a news reporting entity when use is
part of a consistent pattern of activity engaged
in for the purpose of direct competition)
– Scientific, educational or research purposes, if
not a consistent pattern engaged in for the
purposes of direct commercial competition
H.R. 354
• Term: Protection of information ends 15 years
after original collection was first offered in
commerce, with no extension for later changes
to collection; burden of proof is on plaintiff to
show that portion of collection to be protected is
no more than 15 years old
H.R. 1858
• Term: No term of protection specified
Lobbying for H.R. 354
Pro Anti
• NYSE • Chamber of Commerce
• Real Estate Agents • Consumers Union
• AMA • Research Libraries
• EBay • Charles Schwab
• Yahoo
Protection
• Copyright
• Contract
Protection
• Copyright
• Contract
– Bidder’s Edge v. Ebay (May 2000)
Protection
• Copyright
• Contract
– Bidder’s Edge v. Ebay (May 2000) Wednesday
Protection
• Copyright
• Contract

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Berne Convention -- 1886

Berne Convention -- 1896

Berne Convention -- 1908

Berne Convention -- 1914

Berne Convention -- 1928

Berne Convention -- 1928

Berne Convention -- 1928

Berne Convention -- 1948

– Discrimination against authors from non-member countries

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