International Council for Science : Committee on Data for Science and Technology

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C O D A T A

New intellectual property laws may have potential adverse effects on the conduct of science and education. That was the principal concern of the Group on Data and Information of the International Council of Scientific Unions (ICSU) and the Commission on Data Access of the Committee on Data for Science and Technology (CODATA), which met jointly at ICSU Headquarters in June.

At issue is the protection of databases that lack creativity in the selection, arrangement, or presentation of the information even though they may require a substantial amount of time, effort, or financial investment to produce. The creative elements of databases are already protected under copyright. The proposed sui generis right would in addition protect the contents (i.e., the facts themselves) of databases. 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) will now be protected against unauthorized uses and would enable the database owners to charge at whatever level they chose for authorized use.

A European Database Directive has been enacted and will go into effect on 1 January, 1998. Database legislation will likely soon be introduced in the U.S. House of Representatives. Finally, the World Intellectual Property Organization (WIPO) is planning a September meeting to consider similar international database protection. A proposed treaty on this topic was withdrawn in 1996. These developments are discussed below.

In 1994 the Carbon Dioxide Information Analysis Center (CDIAC) at Oak Ridge National Laboratory, USA, published Trends '93: A Compendium of Data on Global Change. The publication, which compiles data from 139 individuals in 13 countries, is a key source of data on global warming and other changes in our global environment. It includes data involving concentrations of atmospheric gases, measurements of climate, and the consumption of fossil fuels and other aspects of carbon use, most of which were originally collected using public funds.

CDIAC took several years to identify, obtain, and synthesize data from such diverse sources. If legislation conferring sui generis property rights for databases had been in force, CDIAC might have had to: obtain intellectual property rights releases from all contributing individuals and institutions; write the report differently to conform with the laws of 13 countries; and include statements to the effect that there were no non-acknowledged contributors to their data that might later claim intellectual property rights. In such a case, it is almost certain that Trends '93 would not exist.

Under a property-rights regime that did not adequately provide for the needs of database users as well as for the rights of database compilers, it could become impossible for governments to obtain the information needed to address key scientific and policy issues.

The Database Treaty proposed (and subsequently withdrawn) at the WIPO Diplomatic Conference in December 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 the use of 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 against individuals who knowingly or unknowingly violated the terms of the Treaty. Consequently, a scientist or educator who passes protected data to a colleague may be subject to prosecution.

Member states of the European Union must enact and bring into force the laws and regulations necessary to comply with the EU Database Directive before 1 January 1998. In the absence of such implementation the provisions of the Directive may be invoked directly in many countries by European database producers through the courts. Draft database protection bills are now being circulated among interested parties for comment, and some have been recently introduced in parliaments or parliamentary committees. Under the obligations of the EEA (European Economic Area) Treaty, EEA States (Norway, Iceland and Liechtenstein) must also comply with European legislation on databases.

Like the draft WIPO treaty, the EU Directive does not require exceptions for science and education. Member States are permitted to create exemptions or limitations under national law to guarantee or safeguard the use of data and data sets by the scientific community. Since the first few countries to implement the Database Directive will set a pattern that other parts of Europe and the world might follow, it is critical that the needs of the scientific and education communities receive full consideration. The ICSU Joint Group plans to work with the national scientific members of ICSU in the EU and EEA to help ensure that these needs are met.

The EU has passed a number of directives of interest to the scientific community, including 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). According to this Directive, 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.

In the view of the Joint Group, the Environment Directive may be at odds with parts of the forthcoming Database Directive. The Group will continue to examine the possibility of applying the Environmental Data guidelines to databases of interest to science and education.

The Joint Group concluded that it must help make the case for continued freedom of access to and use of databases for research and education. The Group will:

• Send a letter to the ICSU/CODATA community, including the ICSU Unions, Associations, and National Members, updating them on recent database developments and asking them to raise their concerns with their governments;
• Prepare articles for Science International, and the CODATA Newsletter, as well as possible articles for scientific magazines, and the press;
• Work to mitigate the impact of the European Database Directive, which is due to come into effect on 1 January, 1998. Activities will include a meeting at ICSU Headquarters in August of National Scientific Members of ICSU in the EU and EEA, with participation by ALLEA, Academia Europaea, and the Council of Europe;
• Prepare a position paper to be submitted to the September WIPO meeting on database property rights. The paper will develop an ICSU position on sui generis protection of databases and will include a number of "scenarios" that explain how scientists and educators use databases;
• Send a delegation to represent ICSU at the September WIPO meeting in Geneva; and
• Continue to maintain and update its data-access site on the World Wide Web. The Group is looking into the possibility of establishing a mirror site in Australia, and possibly other countries if there is sufficient interest. The site may be found at www.codata.org/codata/data_access

To maintain open access to data for science and education, the involvement of the international scientific community is essential. Most researchers tend to take access to the data needed for their work for granted, but this luxury can no longer be afforded in the new legal regime. The Joint Group believes that broad participation in this issue will help drive a solution that minimizes the adverse impact on research and education. The Group needs your thoughts, input, and help.

Further information on all the issues described above can be obtained on the Data Access site on the World Wide Web. E-mail messages may also be sent to Ferris Webster, the Chairman of the Joint Group, at ferris@udel.edu

Those participating in the meeting of the Joint Group, 16-18 June, 1997 were:
David Abir, University of Tel Aviv, Israel (Aerospace engineering); Tish Bahmani Fard, ICSU Secretariat; Rodolfo De Guzman, WMO, Switzerland (Meteorology); Roger Elliott, University of Oxford, United Kingdom (Physics, publishing); Phyllis Glaeser, CODATA Secretariat; Bernt Hugenholtz, University of Amsterdam, The Netherlands (Law); David Lide, USA, (Chemical physics); Anne Linn, National Research Council, USA (Geoscience); Tony North, University of Leeds, United Kingdom (Molecular biology); Jerry Reichman, Vanderbilt University, USA (Law); Peter Schindler, Swiss Academy of Sciences (Crystallography); G. Thyagarajan, COSTED/IBN Secretariat, India (Industrial science); Ferris Webster, University of Delaware, USA (Oceanography); and Karen Wilson, Royal Botanic Gardens, Australia (Botany).

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20 April 2000