...Most of the time the [copyright] conversation assumes that a creator needs an incentive that excludes others - that a monopoly is the best way to give creators the reason to create. It's pretty rare that the incentive conversation focuses on the rights of the users. But that's a different argument, so let's talk about the incentives to create.
In the US, the courts have been pretty clear that simply collecting things doesn't make them worthy of protection. That's the Feist decision I wrote about over the weekend. This decision hasn't hurt the US database industry, so it doesn't appear that the monopoly protection is essential to create a thriving economy around data and databases.
But in the EU, the database industry successfully convinced the European Parliament to create a completely new law for data: the Database Directive....
The Directive also creates a sui generis right around databases....
Like the platypus, the Directive's sui generis right appears to have been cobbled together from spare parts. It's got some ideas from copyright - like prohibiting copies. Copying that is regulated gets defined as when someone performs "substantial extraction" of data. This concept of substantial is of course itself *not* defined. Rights last 15 years (better than copyrights, for sure).
But the Directive also has the idea that these rights ought to be re-booted any time there is a "substantial change" or "substantial investment" - again, without determining substantial....
The Directive was written to provide incentives to creators - the right to sue will surely generate more of an industry, the thinking goes. However, the first evaluation by the EU didn't find evidence for this supposition having been true. Their own words are the best ones:
"The economic impact of the "sui generis" right on database production is unproven. Introduced to stimulate the production of databases in Europe, the new instrument has had no proven impact on the production of databases." ...
The key result of all this is that despite the absence of the incentives supposedly created by "property" rights, database creation in the US not only stayed healthy but out-competed the same industry in the EU. So the incentive argument appears to be a failure here.
On top of that, the existence of the sui generis right screws up then international regimes around data. When we do database integration at Science Commons, we can't use data from the EU because of the impacts of the regime. Weird data licensing regimes screw up data integration (even when they're "open" regimes - this is why the HapMap "clickwrap" license was removed, because it was preventing integration with other genomic databases! See the US government's exact words on the issue, down in Appendix B)....
PS: See John's first post in this series (1/24/09) or the excerpt blogged here.
Posted by
Peter Suber at 1/29/2009 12:18:00 PM.
The open access movement:
Putting peer-reviewed scientific and scholarly literature
on the internet. Making it available free of charge and
free of most copyright and licensing restrictions.
Removing the barriers to serious research.
I recommend the OA tracking project (OATP) as the best way to stay on top of new OA developments. You can read the OATP feed on a blog-like web page or subscribe to it by RSS, email, or Twitter. You can also help build the feed by tagging new developments you encounter.
