ICSU is concerned by the potential adverse effects of new intellectual property laws on the conduct of science and education. The traditional open access to scientific data, which is fundamental to much science and education could be jeopardized.

ICSU and CODATA became actively concerned about data access issues in 1996, at the time when the World Intellectual Property Organization began to consider legislation to protect databases.  The situation in regard to new database protection has evolved since 1996. The World Intellectual Property Organization continues to envisage an eventual database treaty but does not have an active proposal at the moment. The European Union's (EU) Database Directive came into force on 1 January, 1998. In the United States, database legislation continues to be discussed in Congress.

The creativity or selection, coordination, and arrangement of databases is already protected under copyright. A new type of legal protection which would provide a second layer of protection, would protect the contents of databases (i.e., the facts themselves). Thus, all sorts of compilations of data or datasets that have traditionally been in the public domain for lack of sufficient "originality" (to make them copyrightable) could now be protected against unauthorized uses. Legislation that is intended to protect the property rights of owners of databases:

• Has been enacted by the European Union.
• Was considered (and rejected) in a draft treaty at the World Intellectual Property Organization (WIPO) in 1996 and has since been under discussion.
• Has been introduced but failed to pass in the several recent sessions of the U.S. Congress and is likely to be re-introduced in the next session of Congress.

Is a second layer of protection, really needed for databases? It is now easy and inexpensive to copy and disseminate databases electronically. Moreover, databases that are produced by "sweat of the brow" may be expensive and time-consuming to produce, but they are not covered by copyright because they do not meet the test of creativity in the arrangement of data (e.g., phonebooks which use a simple alphabetical arrangement). Parts of the information industry believe that a new right is needed to protect their investment in creating databases and to guard against piracy.

The Database Treaty proposed at the WIPO Diplomatic Conference in 1996 would have established a new legal regime that could impose serious constraints on science and education, undermining the ability of researchers and educators to access and use scientific data. The Treaty would have:

• Permitted database compilers and publishers to restrict anything in their database.
• Prohibited unauthorized use of any substantial portion of a database, as defined by the database owner. As a result, scientists and educators might have to obtain permission and/or pay for each use of the database.
• Made perpetual protection the norm for databases because every change or addition to a database would be protected for 25 years and it is unlikely that old versions will be preserved long enough to enter the public domain.
• Allowed strong civil and criminal action on individuals who knowingly or unknowingly violated the Protocol. A scientist or educator who passes protected data to a colleague may be subject to prosecution.

The draft WIPO treaty on databases allowed participating countries to provide public good exceptions in their implementing legislation. Key exceptions were for the use of government-produced data or the "fair use" exemption traditionally enjoyed by the research and education communities for their limited use of copyrighted works. Participating countries, however, were not required to make any exceptions and it seems likely that different implementation practices would have made it more difficult for scientists to compile global or regional datasets, or to reuse and combine data for publication or instructional purposes. Moreover, the concept of "fair use" in a digital environment is still being defined and may not provide the level of openness that the scientific and education communities require.

A draft treaty on Database protection was introduced at the WIPO Diplomatic Conference in December 1996, but no action was taken. In addition to the concerns raised by the international scientific community, some developing countries, which use significantly more data from other countries than they produce themselves, are concerned that they will not be able to obtain the data they need. As a result of these concerns, WIPO is moving slowly on a database treaty. Member countries have been asked to submit new treaty language to WIPO, and a series of regional meetings were held to define the possible content of a new treaty.

The European Parliament has enacted a Directive which calls for member states to implement legislation to provide database protection as of 1 January, 1998. Under the obligations of the EEA (European Economic Area) Treaty, EEA States (Norway, Iceland and Liechtenstein) must comply with European legislation in the field of Intellectual Property.

The EU Directive contains a reciprocity clause, which states that data provided by another country and used in Europe will only be protected if that country has equivalent database protections. Though this clause has been frequently cited as a motivation for legislation in other countries, it may violate the principles of the World Trade Organization.

The text of the Directive leaves room for Member States to create exemptions or limitations under national law to guarantee/safeguard the use of data and data sets by the scientific community. Article 9 of the Directive allows for such exceptions inter alia

"(b) in the case of extraction for the purposes of illustration for teaching or scientific research, as long as the source is indicated and to the extent justified by the non-commercial use to be achieved."

Similarly, Article 6 (2)(b) of the Directive leaves Member States the freedom to limit the copyright in databases "where there is use for the sole purpose of illustration for teaching and scientific research…". Article 6 (2)(d) also allows for application of "traditional" copyright exemptions. ICSU is concerned that an exemption for illustration would likely not provide sufficient access to data and information for research and education.

According to the EU Council Directive on the Freedom of Access to Information on the Environment [90/313/EEC, 7 June 1990 (Official Journal No. L158 Page 56, Volume 1990, 23 June 1990)] information on the environment, collected by public authorities, must be provided at a reasonable cost. The term environmental data is defined broadly to include information on air, land, water, natural science, etc., as is the term public authorities which is broader than government. The Environment Directive may be at odds with parts of the forthcoming Database Directive. The Group will examine the possibility of applying the Environmental Data guidelines to databases of interest to science and education.

For reasons discussed above, the Information Industry Association, which represents the interests of commercial database producers, continues to support new database legislation in the United States. A bill was introduced and passed in the U.S. House of Representatives in 1998, but did not succeed in obtaining Senate approval. A bill was re-introduced in 1999, but to date no legislation has been passed..

1. The International Council for Science (ICSU) established an ad-hoc Group on Data and Information to deal with problems of intellectual property rights and free access to data. The group has been following national and international developments in database protection, and is working to present the views of science and education in intergovernmental forums.
   
2. ICSU's Committee on Data for Science and Technology (CODATA), which is concerned with both technical and policy issues in providing data to users, has had a longstanding interest in the international exchange of scientific data. CODATA established a Commission on Data Access  to act promptly in the face of fast-breaking issues. For example, in 1995, on behalf of ICSU, it argued for full and open exchange for science and education of meteorological data and related products at the Congress of the World Meteorological Organization.
   
3. The two groups met jointly at ICSU Headquarters in Paris in June, 1997. One decision was to merge the two groups to form the ICSU/CODATA ad hoc Group on Data and Information. Together, they bring expertise in legal, economic, and scientific aspects of database property rights. A report on the meeting has been published in the ICSU publication, Science International.

The group also has:

• Participated in the 1997 WIPO Information Meeting on Databases in Geneva.
• Submitted a position paper to the 1997 WIPO meeting.
• Participated in WIPO regional roundtables in 1999
   
• Followed the impact of the European Database Directive on the global scientific community and prepared recommendations for modifications.
• Organized the Workshop on the European Union Database Directive in 2000.
• Alerted, through ICSU, the European national members of ICSU to the forthcoming review of the EU Database Directive
   
• Participated in discussions of data access policies of the Intergovernmental Oceanographic Commission.
   
• Altered the ICSU/CODATA community, including the ICSU Unions, Associations, and Academies, on recent database developments and asking them to raise their concerns with their governments.
• Published articles in Science International, and the CODATA Newsletter.
• Continued this site on the World Wide Web, hosted by CODATA.

The groups have prepared a list of references relevant to database property rights.

The ICSU/CODATA group will keep this Web site up to date as the situation develops. Comments and queries are welcome. Please send messages to the chair of the group:

Ferris@udel.edu

This page was prepared by Ferris Webster
Chair, ICSU/CODATA Group on Data and Information

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22 February, 2002