Sacramento Bee
Main Editorial
Sunday, November 17, 1996
Forum Section, Page 4

Defining intellectual property in the fast-changing digital world taxes existing laws and systems in the best of cases. That's the only possible explanation for official U.S. government support of a pending international treaty that establishes what critics are calling "the least balanced and most potentially anti-competitive intellectual property rights ever created."

Database publishers companies that assemble computerized collections of facts such as court opinions and enhance them for consumer use want more protection for their efforts, even though they often use information from the public domain. When the U.S. Supreme Court ruled in 1991 that copyright law doesn't cover things such as telephone white pages, the database publishers took their case overseas.

Firms led by the Canadian legal publisher West Publishing convinced the European Union to adopt a sweeping definition of their work and the protection it deserves. Despite almost no widespread consideration here, publishers also won endorsement by the U.S. Patent and Trademark Office, and that approval is the official U.S. position on a treaty now pending before the World Intellectual Property Organization in Geneva.

The treaty would create ownership above and beyond copyright of "text, sounds, images, numbers, facts or data representing any other matter or substance" so long as the publisher has "substantial investment in the collection, assembly, verification, organization or presentation of the contents." Initial analysis suggests the baseball leagues, for example, would then "own" facts such as batting averages; financial markets, judicial decisions, even weather reports could be affected. A Berkeley scholar calls it "the end of the public domain."

The treaty has received almost no debate within the U.S. government; there have been no public hearings on the issue, or on companion legislation introduced into the U.S. House last term. Some discussion apparently recently began within the Clinton administration, but meanwhile the prospect of an international treaty continues to advance; WIPO has scheduled the treaty negotiations for Dec. 2-20.

Every major library association in the country has asked the administration and Congress to abandon this proposal and to open a debate on the proper role of regulation. So have the National Academy of Sciences, the National Academy of Engineering and the Institute of Medicine.

That protest should be joined by everyone who values the open exchange of information that is the foundation of communication in an open society. There is a long tradition in the United States of allowing for the copyright of expression, but not of facts. This attempt to redefine that standard for the narrow commercial interest of a few should not be allowed to sneak into international law with little debate or study.

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