Challenges to Database Information Retrieval – Do We Need a World Information Treaty and Tribunal?

Protecting the value of information from free riding competition in a digital age through revised ‘digital’ database copyright, and the database right, appears to have the consequence that raw information, particularly sole-source information, can be monopolised. The implications for the future are serious. It has, after all, been said that ‘access to information is the foundation of a democratic society’. Competition law can only be a partial solution; instead compulsory licences, a ‘copy-duty’, or expanded exceptions to copyright and database right might be needed to secure access to technologically and legally protected works. Or it might be that nothing short of a World Information Treaty and Tribunal is needed to address these issues.

Digitisation of information for electronic storage and dissemination has enhanced the value, presentation, accessibility and use of information, and become an industry in itself. It does, however, also render electronic information highly vulnerable to piracy on a global scale. The legislative response has been the World Copyright Treaty 1996 [WCT], and the Database [DBD], and Copyright in the Information Society Directives [ISD], creating in particular a sui generis right for non-original databases, and giving legal protection to technological protection, both for access and copying, of works and databases.

Yet the very value of information demands that any protection must effectively balance the interests of consumers with those of producers. Traditional copyright doctrine in relation to information is illustrative: in Ticketmaster Corp v Tickets.com Inc the California District Court refused to grant an injunction against deep linking to a rival’s Web site as to do so allowed copyright protection for raw information, which is not protected in itself even when great care and expense has gone into its collation. To seek information from a copyright work thus fell within the fair use doctrine and in the public domain. However, the same does not appear to be true of the new database right.

The Sui generis Database Right

For up to 15 years database makers may prevent extraction and/or re-utilisation of the whole or a substantial part of their databases, where it can be shown that, qualitatively and/or quantitatively, they have invested substantially in either obtaining, verifying or presenting the contents. Substantial changes which result in a database being regarded as a substantial new investment qualify the renewed database for its own term of protection, effectively allowing eternal protection for a so-called ‘dynamic’ database. This protection is for the investment in creating the database, and should promote the collection of information. However, the right’s despotic tendencies arise from the lack of exceptions, the fact that reuse of information extracted in another format is likely to infringe, and its potentially eternal existence. Yet the right was not intended to create new rights in underlying data, nor to extend copyright to data. Lawful users may extract or re-utilise insubstantial parts of the contents for any purpose, subject only to any copyright which may subsist in the contents themselves. However, most uses of benefit to a user will be regarded as substantial, if, as courts have done, the user’s interest in the information extracted is considered relevant to determining substantiality. Exceptions to infringement are limited. Only ‘lawful’ users are given access to, and use of, information and then only for specific purposes; there is no general right of private use for electronic databases. Substantial parts may be extracted for teaching or scientific research, provided that this is non-commercial and the source indicated. The consequence is access to information held in databases, particularly information whose sole source is the database, being confined to those already licensed – at the licensor’s terms, possibly at a fee, and for a limited set of non-commercial purposes. Where data is in the public domain a competitor may recreate a database, but this is likely to be inefficient and uneconomic; and the right even provides an incentive to keep information from the public domain, restricting its flow.

Examples of the right’s effects are rapidly surfacing in Europe, and four references on the interpretation of the Database Directive were made to the European Court of Justice in 2002. The British Horseracing Board case[1] is illustrative. The chief significance of the case are the findings that the right is not confined to the ‘database-ness’ of the collected information, that to use the information after manipulation and re-presentation would not infringe, and that changes renew the subsistence of the right rather than creating a new database; resulting in potentially eternal protection for underlying data.

It may be that the difficulty lies within the Directive itself, for to adopt a narrower interpretation of databases leaves the data taken completely unprotected once it has been re-expressed in a different form. A potential solution to this could lie in crafting new exceptions, whether general or specific.

Different judicial approaches can be seen in European cases. Resort to competition proceedings in a Dutch case[2] illustrate the need to ensure access to informational products being withheld for competitive reasons. In contrast, in Sweden only a narrow protection was given for the compilation of the database’s contents, and not extended to the data therein, so that infringement only encompassed ‘reprinting or copying the information in the same or a similar compilation’[3]. ‘Thin’ database protection of this kind would render the sui generis right a form of unfair competition, and place the underlying information in the public domain.

Confirmation of British Horseracing Board case by the European Court of Justice is not a foregone conclusion. But reform of copyright law also threatens access to raw information.

Technological Protection

The WCT and ISD add legal protection to technological protection for digital works, including databases. Technical exclusivity is potentially unlimited and a blunt instrument. All use is blocked, current technology is not sophisticated enough to distinguish permitted from unpermitted uses, and may also be applied to public domain material. Where permitted uses are to be made circumvention technology is essential. However experience shows that such technology would quickly spread if made available, enabling all access, and so no virtually no exceptions to the prohibition on circumvention, or the provision of means of circumvention, are allowed for.

Experience in the United States with the Digital Millennium Copyright Act 1998 (the DMCA), enacting WCT, is illustrative. Prohibition of circumvention technology is not limited to copyright infringing access so that copyright owners can control access to all content, and may only put works online in a form where access is ‘pay-per-view’. Increasingly works are, and will be, released only as CD-ROMs or on-line services. Any use after paid-for access can then be subjected to further contractual restrictions. Though the fair use doctrine remains, for it to be exercised access must first be secured. The first sale doctrine, allowing dealings with legitimate copies, is also jeopardised. No longer will publication necessarily place ideas in the public domain. The WCT allows for exceptions, but the DMCA provides few. It has been said that the DMCA surrenders fundamental safeguards – balance has given way to control over access and use, the public interest surrendered to the private, and culture to technology. A number of cases in the US show the restrictions over information that have resulted. Providing unscrambling technology to allow copy-protected DVDs to be played on Linux was prohibited,[4] while Russian programmer Dmitri Skylarov was arrested for his software, written quite legally in Russia.

The Information Society Directive

The ISD may well achieve similar results in Europe. It is not clear that all browsing is covered by the exception for temporary ‘incidental and transient’ copying, again facilitating control over access to works, and a pay-per-view model for electronic distribution is likely. Legal protection for technological ‘locks’ (for both copyright works and databases) applies to both access and copying control. There are exceptions, but all but one of the list are not mandatory. Article 6(4) attempts to ensure that users entitled to benefit from excepted uses may secure access and use, but is proving very difficult to implement effectively. The ISD contemplates right owners providing voluntary access, but leaves it to Member States to provide a mechanism for securing access and use where it is not voluntarily given. The ISD model also appears to contemplate a fee-based system of licensed use, unlike the traditional free approach to fair dealing in the UK: a form of compulsory or statutory licensing. In the alternative the European system of levies on copying technologies (including PCs!) may prevail. Equally alarming is the provision in Article 6(4)(3) that permitted uses need not be given where the work has been made available on ‘agreed terms for access at a time and place individually chosen’ by the user. Though stated to apply to interactive on-demand services (such as video-on-demand) the wording is wide enough to encompass the Internet.

UK implementation remains delayed (though imminent) after the considerable response to consultation on the Directive, and the effects of the Directive in the UK remain unclear. Both the exceptions and Article 6(4) are proving stumbling blocks. As yet only Greece and Denmark have enacted the Directive and the Commission is shortly to take action against non-implementing Member States.

Potential Solutions

The problem of achieving a balance is not new. Neither is technological development. The new twist comes with the combined ‘technology plus law approach’ adopted in the WCT.

Potential solutions lie in one of three main approaches: to adapt traditional ‘balancing’ techniques such as new exceptions, compulsory or statutory licences, or the application of competition principles; to apply a ‘policy of wait and see’ and then to adapt both the digital copyright and sui generis database regimes as experience grows; or it may be that a law plus technology approach is the only way forward towards securing needful access to information.

Resorting to traditional balancing mechanisms does not appear able to meet the full need effectively. The European Court of Justice did apply competition policy in order to enforce access to, and a wider distribution of, copyright protected information in the Magill case, [5] though it is not clear how far this precedent may extend. The ‘Magill’ information (broadcasting listings) was material which would not have received copyright protection in all EU Member States. Subsequent reference to the ECJ by the Frankfurt District Court in the IMS case may yet determine the extent to which licences may be enforced despite copyright protection.[6] There is also the Dutch precedent in relation to protection for non-original databases. However, competition principles do not address themselves to the social value of data and may not ensure access to information, particularly if competition would prove uneconomic and inefficient.

Initially compulsory licences were proposed in the Database Directive, but this provision was removed before the Directive’s adoption. It is thought unlikely that they will form part of the Commission’s review of the Directive. Nor, until technological locks become more sophisticated, would such licences be an effective solution without the access necessary to employ the licence. Proposals for a ‘copy-duty’ or access right would appear to amount to compulsory licensing by another name. If the digital paradox is such that all access must be protected technologically in order to preserve the incentive of intellectual property rights then some form of enforced access must be provided, even if it must be paid for. This issue has underlain consultation over UK implementation of the ISD. The focus then shifts to control over the resulting licences in the same way that voluntary collective licensing is monitored by the Copyright Tribunal. A pre-cursor of this approach is the voluntary licensing scheme originated by Professor Lessig – the Creative Commons – which provides sample licences, and a register of content which allows the source of needed information to be found. Akin to this is a proposal for a ‘copyleft’ approach to information: providing access on condition that data then generated is distributed on the same basis. Both rely on the voluntary provision of access by the copyright owner. There are also strong arguments within the educational, scientific and research world that some information should be available without cost. The Budapest Open Access Initiative provides a system of self-archiving in searchable archives, and sets up free journals.

If the solution is to lie in new exceptions to protection, these might either follow the pattern of specifically crafted exceptions akin to those in the Software and Design Directives, or take a more general form, such as freedom to use for private use or research. The challenge is to translate the rationale for the existing exceptions into the digital world. Exceptions directed at fundamental rights and freedoms such as the freedom of expression and privacy should remain, including exceptions relating to news reporting, criticism, academic and scientific purposes, as well as limited personal and private copying. Where digitisation alters the traditional structure fundamentally – compare the physical constraints of a bricks and mortar library with the 24/7 access to a digital database, for example, – then specially engineered exceptions for libraries and educational institutions will rest on definitions of their function. Such new exceptions, along with other adjustments to the regimes of protection (removing the eternal duration of protection for dynamic databases, for example) suffer from two important difficulties, the inability to access technologically locked information, and the inevitable waiting period while the effects of the new forms of protection are assessed, and legislation amended. This latter must also take place on a regional and global scale, a lengthy process. In the interim, however, the need for information in an Information Society continues to suffer. A third difficulty lies in Article 13 of the TRIPS Agreement 1994, which adopts the Berne Convention ‘three-steps test’ (Article 9(2)) for exceptions to the right of reproduction. It provides that limitations or exceptions to exclusive rights must be confined to (i) certain special cases which (ii) do not conflict with a normal exploitation of the work and (iii) do not unreasonably prejudice the legitimate interests of the right holder. This does not prevent national legislatures from pursuing their own policy objectives, provided that any exception does not derogate entirely from the protection, but does imply that excepted uses must be paid for, contrary to the UK approach to fair dealing.

Consequently there are three major considerations in crafting a viable solution to the problem of access to digitised information. Firstly, because the problem of access to information in an information society is one largely generated by the scale and global nature of the Internet, the only effective solution seems to be a harmonised one. Secondly, technological ‘locks’ can frustrate access and use permitted by exceptions. Thirdly, even where access and use is voluntarily provided, there is a need to ensure that contractual provisions are reasonable.

A Combined Technical and Legal Approach

A combination of three steps may therefore be needed: to define the information and the uses which are necessary; to provide technological means to secure the permitted uses; and to provide the means of accountability and arbitration in order to secure access on fair and reasonable terms.

While this might be a Utopian ideal, given the criticisms of the ISD and the distinct lack of harmonisation it achieves in the face of differing national traditions even within Europe, as well as the differences of interest of the developing and developed nations, the best hope may still lie in a global World Intellectual Property Organisation initiative. WIPO’s economic studies of database protection are one step forward, but another long look at the rights’ exceptions seems another not-to-be-ignored step before a viable and long-lasting solution can be reached.

WIPO’s Standing Committee on Copyright and Related Rights, which is considering World Database Treaty commissioned studies on the economic impact and consequences of database protection, including social consequences, and the impact on science, teaching and research. There was some support at their Fifth Session in May 2001 for the view that an international solution lay only in a WIPO Treaty and that exceptions for education, public safety, administrative and legal duties needed to be included. That there are areas of concern, particularly in relation to research, scientific information, and the operation of the Internet, is however clear. Perhaps the most significant result is the recognition by Braunstein that there are social, moral and political issues to resolve outside the scope of the purely economic. Two studies focus on the question of how appropriate limits might be drawn – through compulsory licensing, price control, specifically drawn exceptions and competition policy. Further and more comprehensive research is called for. Such a treaty would only apply to information contained in a database.

But it is digital copyright combined with database protection which poses an unwarranted threat to access to, and use of, needful information. As empirical evidence is required of how the balance between protection and use should lie a complete answer might only be found in a World Information Treaty.

A Treaty would have to define categories of information and uses to which that information is put in order to guarantee access and necessary use. This need not be done in highly specific terms; experience with the copyright fair dealing or fair use provisions in both the UK and US by providing a judicial body with a defined discretion to adjudicate between differing interests suggests a way forward. Consequently a treaty should be combined with an Information Tribunal.

This should be given jurisdiction over the provision, and the terms and conditions, of digital information licences. Again precedent exists in the jurisdiction of the UK Copyright Tribunal over collective licensing schemes. There is also precedent in the Unfair Contract Terms Act 1977 and Unfair Terms in Consumer Contracts Regulations. At the international conference held by the Internal Market Directorate-General of the European Commission in July 2000, the contractual aspects of intellectual property licensing were discussed. An Information Tribunal would have several advantages:

• real disputes can be arbitrated, and the requisite evidence for further legislative action be garnered
• it would provide accountability for licence terms in digital contractual ‘pay-per-view’ access to protected information
• it could be required to report at regular intervals to WIPO with recommendations as to new exceptions.

There remains the technological conundrum – that to preserve any incentive for the production of digital works, technological protection is needed. But such protection can be effective only where no means of circumvention are legally available. Is it too far-fetched to suggest that this Tribunal could also be provided with the electronic key to all digitally protected sources of information? If digital sources of information defined in the Treaty are required to register their availability and the means to access them provided to a central Information Register (or Information Portal) this conundrum could be overcome. Given the global nature of the Internet and the availability of information over it, an Information Tribunal could operate online in the manner of the domain name Uniform Dispute Resolution Policy.

Catherine Colston is a Lecturer in IT Law at the University of Strathclyde.