[Congressional Record Volume 146, Number 135 (Wednesday, October 25, 2000)]
[Senate]
[Pages S10986-S10987]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          STATUS OF INTELLECTUAL PROPERTY LAW AND THE INTERNET

  Mr. DeWINE. Mr. President, I rise today to discuss the impact the 
Internet is having on database producers and the lack of Intellectual 
Property protection we provide to creators of databases, in particular. 
This is an issue that deserves the Senate's attention, and I will be 
encouraging the Chairman of the Judiciary Committee, Senator Hatch, to 
hold hearings early next year to examine this issue in detail.

[[Page S10987]]

  Intellectual Property laws are about striking a balance between our 
need to encourage invention and creativity with a public policy that 
discourages the use of monopoly power. Our founding fathers recognized 
the importance of national patent and copyright laws in Article 1, 
Section 8 of the United States Constitution. Similarly, we have a long 
tradition of protecting the public from monopolistic abuses through our 
Antitrust laws, starting with the Sherman Antitrust Act of 1890.
  Through our copyright and patent laws, we allow artists and inventors 
to have monopolies of limited duration on their creations and 
inventions, which can have the short-term effect of limiting access by 
consumers. However, these exclusive rights give artists and inventors 
incentive to create more--ultimately to the benefit of the public at 
large. Our thriving economy and the success of our country's technology 
sector is evidence that we have reached an appropriate balance between 
exclusive rights and consumer access.
  However, the balance has shifted with the emergence of new 
technology. Digital technology, for example, allows an individual to 
copy huge volumes of data from anonymous sources and then distribute it 
almost immediately all over the world through the Internet.
  I am very concerned about the utter lack of protection for 
individuals and companies who invest substantial resources in gathering 
and organizing large volumes of data or information. These databases 
were, at one time, protected by our copyright laws under a legal theory 
known as ``sweat-of-the-brow.'' This policy protected collections of 
information from theft and recognized that significant resources often 
were spent in collecting and organizing information. In 1991, the 
Supreme Court overturned the sweat-of-the-brow protection and said that 
only ``original'' works are covered by copyright law. This ruling, 
coupled with the ease of copying and distributing databases over the 
Internet, have created a significant problem with theft or ``piracy'' 
of databases. The creators of stolen databases are usually left with 
only piece-meal protections and often have no recourse whatsoever.
  I share the concerns of those who believe that database protection 
legislation could limit the access of consumers to information, and I 
certainly will not support legislation that harms consumers. However, 
Mr. President, I believe that this is a case where our policies are out 
of balance.
  Information is a resource that becomes much more valuable when it is 
organized in a coherent way. Database companies devote substantial 
resources to collecting, organizing, and maintaining information for 
users. Without such investments, vast quantities of data would be 
incomprehensible and almost unusable. We must give the companies that 
create these databases some sort of exclusive right to enjoy the 
benefits of their hard work and investment.
  Without granting some exclusive right to database producers, 
investment in databases will diminish over time, as more and more 
databases are copied and distributed by pirates. Ultimately, the 
reliability of information available to consumers over the Internet 
would be undermined.
  This potential for unreliability has serious real-life implications. 
For example, emergency room staff and parents use databases to identify 
poisons and their remedies; doctors use them to find specifics about a 
medical procedure; farmers use them for weather and soil information; 
lawyers use them to find cases and precedents; pharmacists use them to 
detect dangerous drug interactions; chemists use them to test new 
compounds; workers use them to find new jobs; and home buyers use them 
to find the right house. If these databases are not available or are 
inaccurate, it is the consumer who loses. As with all of our 
intellectual property rights, some small limitations on consumer access 
in the short-term will produce significant long-term advantages and 
increased access to accurate information.
  This is not a new issue for the Senate. Two years ago, in the 105th 
Congress, a serious effort was made to pass legislation that would 
limit database piracy. Judiciary Committee Chairman Hatch hosted 
extensive negotiations between all interested parties. Unfortunately, a 
compromise on database protection could not be reached. At the last 
minute, the database provisions were dropped from the conference report 
for the Digital Millennium Copyright Act (DMCA).
  When we passed the DMCA, I came to the Floor and expressed my 
disappointment that we could not reach a consensus on a database 
provision. Judiciary Committee Chairman Hatch and the Ranking Member 
Leahy also expressed their disappointment. I asked, and Senator Hatch 
agreed, that the Judiciary Committee address the database bill early in 
the 106th Congress. Unfortunately, despite efforts particularly in the 
House of Representatives to reach an agreement, conflicts in the 
industry remain. We have not been able to consider such a bill during 
this Congress. Now, with only a few days left, it appears that we will 
not consider database protection at all this year.
  I believe that we should start fresh on database legislation early 
next year. I ask Chairman Hatch for his commitment that the Judiciary 
Committee will hold a hearing on this important matter in the Spring. 
For my part, I will do everything I can to draw attention to this 
matter. I will continue working toward a solution that protects 
databases from piracy while protecting the rights of consumers.

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