The workshop - Building and Owning Biotechnology Databases was
held at the Golden Tulip Hotel, Purmerend, The Netherlands on 22-23 September
1998. It was organised by The Biotechnology Information Strategic Forum,
with support from DGXII of the Commission of the European Communities.
Copyright and the publishing world -- Mark Seeley, Elsevier Science
Introduction
Elsevier is in a somewhat unusual position being both a primary content provider and a database producer so, as the company’s primary copyright lawyer, I have to advise business units within Elsevier who are primarily information users and others who are primarily information providers - so I hope this enables me to see both perspectives and provide you with a useful introduction to copyright issues for database producers.
I will talk first about copyright essentials, secondly about the advice we give compilers at Elsevier about assumptions they should make regarding copyright issues, thirdly about rights in resulting compilations, and finally I will touch on controversies and debates.
I. Copyright essentials - the compiler’s perspective
The essentials of copyright which impact us as compilers of data, including data from others, are the following principles:
Fixation. Creators have rights under copyright law, from the moment a "writing" is "fixed" in a tangible medium (paper, diskette, hard drive). Registration is not required, neither are notices.
Reproduction. Copyright law gives the creator the right to set the terms and conditions for the reproduction of the work (including the right to make it widely available for anyone to copy without charge).
Expression not ideas. Copyright protects the expressive nature of a writing or work; not the underlying concepts, discoveries, inventions or ideas represented or discussed in the work.
Attribution & integrity. Creators also have the right, under copyright law and under moral rights, to be appropriately identified as creators and to ensure the integrity of the result of reproduction of the work.
Subsidiary rights. Creators also have the right to create and control the creation of subsidiary and derivative works and to license or authorise others to use the work (or parts thereof) including in other media or for translations etc.
Transfers & licenses. Creators can transfer their rights or license those rights (or various slices thereof) without limitation (except that moral rights, attribution and integrity, cannot be transferred in most countries, although the administration of moral rights can be), and in most countries, the transferee (most commercial STM publishers, for example) steps into the shoes of the creators.
Employers/governments. Some creators do not have copyright in their works as in some countries the rights of employees are automatically (or by written agreement) transferred to their employers – also US governmental works are public domain, no copyright - UK crown copyright works differently—choice of creator or institution regarding transfer or obtained by government.
II. Compiler perspective - assumptions regarding copyright
From a legal perspective, the advice I give to our database producers within Elsevier as to the assumptions which can be/should be made regarding copyright is that when the producer is considering including material/results from parties other than the producer, it is safest to:
It is true as to the second assumption, that if you as a database producer are a non-profit or governmental agency, you may be able to make in some countries (US/ UK) some argument that use without permission is permissible because of the noble charitable purpose of the database – and some courts might find this persuasive.
It is true as to the third assumption that there are many ways to ask permission or seek a licence – it can be a complicated convoluted matter - it can also be made simpler if you as the compiler are specific about what you are doing and how you intend to distribute the work and simply ask permission to use the specific bits that you want to use.
III. Copyright in the work of the compiler
As a compiler of data, regardless of the source of those "bits of data", you also have rights under copyright law, under the EC Directive on the legal protection of databases (national implementing legislation), and also under moral rights.
A compilation is considered a literary work, protectable as much (or nearly as much) as any other kind of work. Therefore the compiler has a right to authorise or manage the reproduction of the database, the right to license and sub-license, to create derivative works (sub-databases), and the right to prevent others from doing so.
The laws of most countries now hold that compilations or databases are protectable only if they are original in the manner in which the data are structured. This would seem to be a patent law-like requirement for non- obviousness. Since most databases are valuable because of the logic of their organization and the ease of their usefulness, there may be some doubt about their originality for copyright purposes.
That concern has been met in the EU under the Database Protection directive (see article by Liz Coleman), which gives a limited term of protection (15 years) against unauthorized reproduction or extraction. The directive does not prohibit any third party from going to the original sources of information and compiling their own database – it merely authorizes the first compiler to manage reproduction from its compilation.
Compilations created by governmental entities in the scope of their official function are also subject to public domain notions (US) or crown copyright (UK). There is also a similar proposal for EU-authored or sponsored works (under which they would automatically become the property of the EU).
IV. Controversies & debates
Copyright law is particularly rich at this moment with debate over the shift from paper to megabytes. Copyright law has been through a number of other transitions to different media (in this century, film, video, sound recordings, photocopying, CD-ROMs, computers and computer media), and while certain basic fundamentals have always applied (again, the creators set terms and conditions regarding reproduction), governments have sometimes found that the particular technologies raise certain fundamental risks to creators or involve certain paradigms for the industries involved and consequently accept variations from time to time, as for example occurred in the music industry when the emphasis shifted to sound recordings.
Many copyright industries assert with respect to the digital environment that the risks in widespread distribution of unauthorized copies, and the high quality of those copies (unlike earlier technologies such as photocopying) are so high that exceptions and privileges promulgated for earlier technologies must be scrutinized very closely and adopted digitally only in the most narrowly prescribed fashion. Some advocates even assert that all exceptions and privileges should be eliminated for digital works – since the context of those exceptions tended to be a scarcity of information resources, their context in an age of information overload is no longer relevant. Personally I have a great deal of sympathy for this view.
Advocates claiming to represent "information users" and librarians want to import the analogue exceptions and privileges such as fair use, library copying privileges, archival privileges for libraries, interlibrary loan, educational classroom instruction exceptions, into the digital environment. These advocates tend to describe a "balance" between creators and users, and assert that these privileges should be extended digitally in order to preserve this balance. Some go further and argue that these exceptions and privileges should be broadened, so that the limitations inherent or explicit in current law for these exceptions (number of copies made, purposes for which copies can be made, nationalities of requesters) are eliminated. These advocates indicate that the promise of high speed information networks will be fulfilled only if all restrictions are done away with.
In the end a balance must be struck among these different views. The EU Copyright Directive draft as of 10 December 1997 attempts such a balance, preserves exceptions and privileges in the analog environment, notes that some exceptions will be permitted digitally, and focuses on private initiatives through licensing as the sensible approach between information consumers and information producers.
My own views are highly market-oriented--- I believe that the Information Society will be rich, productive and useful only if information producers such as database compilers are encouraged to invest in digital resources and are encouraged to believe that the new Internet culture will foster respect for data integrity and on-line commerce. The only real alternative to private investment is to rely on governmental funding of these activities, which I would argue is too inconsistent and subject to too many restrictions to be the only source of funding and support for scientific literature.
Conclusions
Database producers are both consumers and producers--- and as consumers we are under an obligation to respect the rights of other data producers, and certainly to respect the integrity of any data "mined", as much as we want others to respect our rights and the integrity of our data.
The laws of copyright and moral rights are not as some would argue the
enemies of progress—they are the laws which encourage a commerce in ideas
by promising recognition (and yes, possibly reward) to the originators-
-- they preserve choice for originators who may elect to distribute their
works broadly and without charge—but they also preserve the possibility
that an originator can obtain revenue to underwrite that party’s investment
in their work and also generate revenues for the commercial entities among
us.