International Regulation of Databases: The Example of BioInformatics Douglas J. Sylvester Associate Professor of Law Arizona State University

American Model “Thin” Protection of Copyright Act – Only protects compilation and derivative works – No protection for mere facts Feist – Database consisting of “mere facts” not protected – Originality requirement Texaco – Commercial Use=No Fair Use

Scientific Databases in US Minimal Copyright Protection – Consist of Facts Trade Secret – Refusal to Share: Fear of Copying – Licensing: Restrictive Terms

European Union Database Directive – Passed in 1996 – Defines Database as: Including, literary, artistic, musical, or other collections of work Collections of other matieral such as texts, sound, images, numbers, facts, and data Collections of independent works, data, or other materials which are systematically or methodically arranged and can be individually accessed

European Database Directive – Protects: Aesthetics of the Database (selection/arrangement) – Approximates US Approach – 70 years + Life (same as US) Sui Generis Protection – No “unfair” extraction of “significant” portions of data – 15 years + 15 after each “alteration” (perpetual!) Countries may enact higher standards

Hill Case UK Decision, August 2001 – Interpreted Directive: Bookkeeper set up online betting site Licensed text of racing matieral from British Horseracing Board Bookies “grabbing” of identical text from BHB website violates EDD.

US Responses Legislation – None passed – Many considered to grant sui generis protection to databases (in line with EDD)

Critics of EU-Based Solutions Access to factual data is essential for promoting science Would-be database pirates can be “stopped” by code (passwords, encryption) Branding (Lexis, Westlaw) Chills Fair Use Would not incent---would monopolize information

Proponents of EU-Based Solutions Rewards business for efforts Prevents Piracy Lack of protection stunts innovation and investment Licensing is too cumbersome – And sometimes problematic to enforce

Consequences Bioinformatics and other Scientific Databases – Contain mainly “facts” Not protected under US law Highly Protected in European law EU % of Database risen dramatically in last 5 years (10%) Reluctance of European databases to allow U.S. researchers access (fear of copying) Disadvantages US databases – EDD only applies to DBs residing in EU countries

Consequences: 2 Many databases are no longer open for free use – Genome Consortium (Phoenix) – Self-Help Protections Encryption RMS Watermarks

Word on Privacy EU Data Privacy Directive – Much higher protection than US Covers B2B and B2B – Forbids transfer of Personal Information (PI) from Europe to country with lesser standards – Must Disclose Uses (Permissible) and Provide Access Think of Students and Their Records The Point is Simple: The Rest of the World Matters

Final Word Think Globally – International Standards Matter Cross-border partnering Database Sharing Privacy Concerns are Different