Student Projects:Database Protection:Project Description

Back to our Main Project Page ===Title=== Legislated Database Protection: Is It Working?

Team Members

• Damon May (UW)
• Don Totten (UW)
• David Moss (UW)
• Elijah Esquibel (UCB)
• Charistel Ticong (UCB)

Description of Topic

In this project we will explore the existing legislation protecting databases from unauthorized copying and use. We will investigate both the form and the effects of such legislation in the EU and in the US. We will discuss legislation that has not yet been implemented and compare it with the existing legislation that is beginning to have a track record.

These types of protection are in their infancy, and so there are a great variety of approaches to the problem, all of them largely untried and therefore, in a sense, equally valid. We will attempt to make a comparison between these different approaches and formulate an opinion as to the approach that best protects what it intends to protect while not placing undue restrictions on the scientific community.

The Directive on the Legal Protection of Databases (Lead Author: Damon May)

We will begin with a discussion of a piece of legislation aimed squarely at the topic of database protection, and one beginning to have a serious track record. The Directive on the Legal Protection of Databases was adopted by the EU in 1996, though the last member countries enacted legislation enforcing the directive in 2000.

Defining the Directive

We will examine the protections that this Directive creates in detail, making clear:

• What the Directive explicitly does and does not allow
• The exceptions that it provides for scientific use
• The freedoms that it allows to member states in the creation of their own legislation
• The portions of the directive that are most ambiguous and/or troublesome

Implementations of the Directive

We will examine some of the country-specific legislation that has sprung up to implement the Directive, e.g.

• Germany: Article 7 of The Information and Communication Services Act
• UK: 1997 Copyright and Rights in Databases Regulations.

Enforcement of the Directive

We will judge the directive and its progeny by their works. We will explore the precedents set by some of the more interesting court cases that have arisen from these country-specific pieces of legislation, including:

• Germany
  • Medizinisches Lexicon 1998
  • Tele-Info-CD 1999
• UK
  • British Horseracing Board (BHB) v. William Hill Organization Ltd.
  • Fixtures Marketing cases

Responses to the Directive

We will examine the responses of various organizations to the directive, including the 2002 official review from Nauta Dutilh (an Amsterdam-based legal firm) commissioned by the EU. These responses investigate the increase in creation of new databases since the Directive and raise several concerns about the effects of the directive on scientific research.

Evaluating the Directive

Based on these observations, we will form an opinion of the success of the Directive in encouraging innovation and protecting investment. We will weigh those potentially positive effects against the barriers that the Directive has raised to legitimate scientific use of information.

HIPAA (Lead Author: Don Totten)

--DonT 10:12, 8 Nov 2004 (PST)Next we will turn our attentions to a piece of domestic legislation, the Health Insurance Portability and Accountability Act of 1996 – HIPAA and its effect on medical research.

HIPAA Overview

We will first study the language of the act itself to determine its intended aims and the entities to which it applies.

From this broad look at HIPAA we will focus on HIPAA as it concerns the clinician conducting medical research.

HIPAA and Medical Research

We will discuss the applicability of the rule to clinical research - as defined by the National Institutes of Health, NIH at [1]

We will explore the effects of the act on front line clinical research. To do this we will interview researchers at the UW Multidisciplinary Clinical Research Center, an NIH and NIAMS funded research organization. The text of the interviews will be provided as addendums to this paper.

Effects of HIPAA

We will then attempt to reconcile the effects of the act in practice with aims of the act.

What Do We Protect (Lead Authors: Elijah Esquibel and Charistel Ticong)

• Various CEOs like Reed-Elsevier (Lexis Nexus) offer arguments for sui generis protection
• By having easy access databases, databases might fall into the wrong hands and lead toward a number of stolen identities.
• By having easy access to databases, researchers would not have to repeat procesesses or steps in an experiment, because some existing databases would already have that information.

What should be released?

• Instances in which profitable government subsidized/research database are claimed as University property, thus reducing content in the public domain
  • What level of investment should trigger protection?
• We will discusss the ways in which databases are currently constructed so that they remain within the control of the creator.
  • Query and fetch functions such as Lexis-Nexus uses.
  • Restriction from acess due to unauthorized use and distribution

Erosion of Copyright Law

• We will do a case study in which we examine how US copyright law has been modifed by progressive judges to pick away the meat of the current Feist case, which is basically a skeleton of what it used to be.

Necessity of Database Protection

• Whether or not the US needs a specific law for database protection such as provided by the EU directive and its member states.
• Do database protections encourage healthy competition or hinder it?

Developmental Background of Database Protection (Lead Author: David Moss)

US Copyright Context

• History of Database Protection
  • Pre-Feist Practices (brief - if at all)
  • Feist (brief - if at all)
  • Interpretations of Feist
  • Non-Copyright Cases ("Hot News": INS; Motorola; Florida)
  • Proposed Current Legislation
• Policy Question(s)
  • Should we imitate Copyright - Extend INS - Remain Silent???

Summary

Our goal is to summarize the current state of Database Protection legislation, examine some proposed pieces of legislation that have not yet come into being, and select from among these various protections the approach to database protection that we feel best fosters innovation while placing as few restrictions as possible on legitimate scientific research.