Prepared Witness Testimony

The House Committee on Energy and Commerce

H.R. ___, the Database and Collections of Information Misappropriation Act of 2003

Subcommittee on Commerce, Trade, and Consumer Protection
Subcommittee on Judiciary Committee's Subcommittee on Courts, the Internet and Intellectual Property
September 23, 2003

 

Prepared Statement of The Honorable Cliff Stearns

Thank you Chairman Smith for hosting this unprecedented hearing. On behalf of my fellow Energy and Commerce Committee members, I thank you for the "Texas style" warm hospitality.

The Copyright Clause of the United States Constitution states that Congress shall have the power to "promote the progress of science and useful arts, by securing for limited times to authors . the exclusive right to their respective writings." This power is limited by subject matter -- only writings and discoveries of authors may be protected; purpose -- material may only be protected to the end of promoting science and useful arts; and duration -- writings may be protected for a limited time period. While all three limitations are important, it is the subject matter limitation that is the central consideration underlying copyright protection.

For 70 years there was a split in the courts about whether copyright protection would be afforded to only creative works or whether noncreative compilations of information could receive protection. A minority of courts held that noncreative compilations of information could receive copyright protection under the judicial "sweat of the brow" doctrine. In 1991, the Supreme Court struck down the "sweat of the brow" doctrine. The Court wrestled with the ostensible paradox that while facts are not copyrightable, compilations of facts generally are. The Supreme Court explained that the key to understanding the seeming paradox was in understanding why facts are not copyrightable. The Court held that originality is the sine qua non of copyright law, without regard to the resources spent in collecting and assembling factual compilations. A compilation is no more worthy of copyright protection than the underlying facts themselves, unless there is a modicum of creativity in the compilation. In other words, creative compilations of information would be protected by copyright; noncreative compilations of information, like the white pages, would not.

And that is why we are here today. Proponents of legislation argue that this decision left a gaping hole in the protection of their products. They believe the distribution capabilities of the Internet have exasperated the need to fill this gap in protection. Opponents of the legislation see no shortcomings in current law and believe the proponents of legislation have failed to demonstrate a concrete problem that requires a legislative solution. They believe contract, trespass, misappropriation, unfair competition, and the Computer Fraud and Abuse Act provide sufficient protection for noncreative databases. It seems that while the opponents of the legislation would support a narrow misappropriation statute, they raise Constitutional concerns about broader proprietary interests in factual information. I share those Constitutional concerns.

I believe that Congress should not create property rights in facts. Specifically, I am concerned that the prohibition against making database information available has ambiguous terms that will chill the development of new databases and lead to litigation. I am concerned that a database that is merely maintained, and not necessarily collected, would receive protection. How does this standard couple with the time sensitivity standard? Could the maintenance provision cause a court to have a liberal reading of time sensitivity?

I am most concerned about the way this legislation will impact scientific, educational, and research activities. I worry that the determination of what is customary is so vague that it will only be resolved through costly litigation. This could put a real chill on important research activities. A result I suspect none of us would like to see.

I look forward to a rigorous discussion of the Constitutional issues, such as the Constitutional boundaries of noncreative database misappropriation legislation, and the other issues I have raised. I am pleased that we have the opportunity today to have these questions answered. I withhold comment on the draft until I can be certain this draft strikes the appropriate balance between access to information, innovation and protection against misappropriation. It is plausible that such a balance may be unattainable. I am certain the discussion here today will assist me in that determination and I look forward to hearing from our distinguished panel. I thank my friend Chairman Smith for hosting this joint hearing and I look forward to working with him on this issue. I yield back the balance of my time.

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