Database protection in the USA

The US has no database law like the European Union. Databases can be protected by copyright, but only if they qualify as a "compilation".

Door ICT-jurist Arnoud Engelfriet (blog, contact).

The US has no database law like the European Union. Databases can be protected by copyright if they qualify as a "compilation". This requires that the items were included into the database because of some creative expression on the part of the collector. For instance a "best of 2004" collection qualifies. This involves an aesthetic judgment about what is the "best". A "complete list of English words" would not, since trying to be complete is not a creative activity.

Some other legal doctrines are available in special cases. Using someone else's "hot news" may be unlawful. And using electronic spiders (web robots) to extract information from someone else's site may qualify as electronic trespassing.

Introduction

In the USA, databases can only be protected by copyright as compilations. 17 US Code 101 defines a compilation as "a collection and assembling of preexisting materials or of data that are selected in such a way that the resulting work as a whole constitutes an original work of authorship." It is required that the selection involves some creative expression. For example, a top 10 list of famous persons could be copyrighted because of the subjective (and thus original) nature of the selection criterion. The individual names are not protected, and so anyone may copy a particular name from the list. However, copying of the list as a whole (or a substantial portion) is not permitted.

If there is no original/creative selection involved, the database is not protected. A telephone directory ("white pages", i.e. subscriber information) is not protected by copyright, as it represents a collection of facts, compiled without any of the creativity required for copyright protection (Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 1991).

Before this Supreme Court decision, several US courts had granted copyright protection to a collection of facts, such as a database, if the creator of the database required a lot of effort to collect the facts ("sweat of the brow" protection). Under such protection, it was not even allowed to extract individual facts from the collection. If for example someone had compiled a list of famous persons and gave their birthdate on the list, no one was permitted to copy a single birthdate from the list. This "sweat of the brow" protection under copyright law was explicitly set aside in the Feist decision.

The "hot news" doctrine

Because of the Feist decision, no copyright protection is available for factual information such as stock quotes or scores or other statistics for games. Such factual information can be quite valuable, because they are often time-sensitive (the more recent, the more valuable) and require a large amount of effort to collect. To protect such time-sensitive information anyway, state laws regarding misappropriation can be used. This is known as the "hot news" doctrine. Under this doctrine, the collector of such time-sensitive information can stop its competitors from copying their "hot news."

NBA versus Motorola

When Motorola transmitted "live" statistics on basketball games to pagers while the game was in progress, the NBA started a lawsuit claiming that this violated the NBA's copyright to the game scores and other statistics, as well as their property rights on the games and their exclusive rights to broadcast the games. The 2nd Circuit Court decided that basketball games, and similar athletic events, are not "original works of authorship" under copyright law, and so scores for basketball games are not protected by copyright (NBA v. Motorola, Inc., 105 F. 3d 841, 2d Cir. 1997).

Next, the Court applied the "hot news" doctrine from International News Service v. Associated Press, 248 U.S. 215 (1918) to the misappropriation claim. In this older Supreme Court decision, it was decided that Associated Press had a property right to any "hot news" it acquired first. To determine whether some collection of information was protected under this doctrine, the Court gave the following criteria:

  1. the plaintiff generates or collects information at some cost or expense, or;
  2. the value of the information is highly time-sensitive;
  3. the defendant's use of the information constitutes free-riding on the plaintiff's costly efforts to generate or collect it;
  4. the defendant's use of the information is in direct competition with a product or service offered by the plaintiff; and
  5. the ability of the other parties to free-ride on the efforts of the plaintiff would so reduce the incentive to produce the product or service that its existence or quality would be substantially threatened.

In the NBA case, the Court ruled that the NBA had not shown any direct competitive effect by Motorola's use, nor had it shown that Motorola was having a "free ride" from the NBA's efforts. Thus their case was dismissed and Motorola could continue transmitting sports statistics to pagers.

Morris Communications versus PGA Tour

In the case of Morris Communications Corp., Inc. v. PGA Tour, Inc., 117 F. Supp. 2d 1322 (M.D. Fla. 2000), PGA Tour had developed a "Real Time Scoring System" (RTSS) that allowed it to compile golf scores in real time. PGA promotes professional golf tournaments held on private golf courses. The media is allowed to attend only under certain conditions. Because a golf tournament involves activities at widely dispersed locations at the same time, it is difficult to collect real time scores without electronic communication means. Using the RTSS, the PGA is able to compile golf scores from all these dispersed locations at the same time.

Media companies are granted access to the scores if they agree to delay publication for at least 30 minutes, so that the PGA, and its syndicated news outlets, is always the first to publish these statistics. Morris Communications wanted to publish these real-time scores on the Internet, but could not do so because of technical difficulties with the official distribution scheme. After being refused access to the RTSS system itself, Morris sued, alleging that PGA engaged in unfairly competitive tactics, stifling the competition in the market for golf scores. PGA responded by claiming a property right in their golf scores, and arguing that they had the right to limit access to the scores to safeguard themselves against "free riders" and to be able to recoup their investments in RTSS and gathering of the scores data.

Based on the NBA vs Motorola case, Morris argued that real-time scores are facts in the public domain. However, in this case the court decided that, while in basketball there is only one score, which is available continually to all viewers, in golf no scores of the participating golfers are normally broadcast in real time, so someone who compiles these scores does have a reasonable interest in protecting the gathered information. Because PGA had developed a sufficiently competitive process for gathering "real-time" statistical information during professional golf tournaments, its claim to protection as "hot news" prevailed.

Electronic trespass

Another way to restrict access to factual information is to use laws regarding trespass. The famous Internet auction site eBay used these laws in California to prevent a company called Bidder's Edge from "spidering" its auction website and offering the thusly obtained auction information on its own website. Even though anyone can freely browse the auctions on eBay's site, this access is subject to certain conditions, so the court regarded the site as private property.

As the site put up a "robots.txt" file (the common way to signal to robots that access to index or crawl the site is refused), and Bidder's Edge ignored it, the court ruled that this was indeed trespass to chattels under Californian law. See eBay Inc. vs. Bidder's Edge Inc., 100 F.Supp.2d 1058 (N.D. Cal. 2000).

A similar argument was used by domain name registrar Register.com in Register.com Inc. v. Verio Inc., 00CV-5747 (S.D.N.Y., Dec. 8, 2000). Register.com is one of the "official" domain name registrars, controlling the issue of Internet domain names. Part of being an official registrar involves making available a so-called WHOIS database. Using this database it is possible to determine contact and registration information for domain names. One of the conditions for usage was:

By submitting a WHOIS query, you agree that you will use this data only for lawful purposes and that under no circumstances will you use this data to allow, enable, or otherwise support the transmission of mass unsolicited commercial advertising or solicitations via direct mail, electronic mail, or by telephone.

A robot operated by Verio regularly queried the database to obtain contact information for newly registered domain names. Verio then contacted the operators to try and attract business from them. Register.com argued that this was a violation of the conditions of usage of the database, with which the court agreed. The court also argued that Register.com was likely to succeed on its claim of trespass to chattels based on the precedent set in eBay Inc. vs. Bidder's Edge.

Pending legislation

Two bills are currently pending in the House of Representatives that would introduce database rights comparable to the European Union's Database Directive: HR 354 and HR 1858. HR 354 was introduced in the House Judiciary Committee by Coble in January 1999. This bill is oriented towards database producers and prohibits uses which could harm the primary or related market of the database. The other bill, HR 1858 introduced by Bliley in May 1999, is more oriented toward database users. HR 1858 allows all uses of databases, except commercial uses meant to compete directly with the original database.

Both bills contain certain exceptions, for example by excluding government-produced data from protection, or by offering certain fair use exceptions like with the Copyright act. HR 1858 also excludes individual ideas, facts, principles, preexisting databases, and works of authorship. HR 354 further does not permit the systematic or repeated use of someone else's database, although HR 1858 does. This makes HR 1858 more popular with scientific organizations, libraries, Internet service providers and telecommunications companies.

The protection granted under EU Database Directive only applies to producers in the EU, and to producers outside the EU with a registered office in the EU. Databases made in a country outside the EU can only benefit from database protection if there is an agreement between the EU Council and that other country (article 11). Such an agreement will only be concluded if the other country offers a comparable protection for databases produced by producers in the EU, i.e. if the protection is reciprocal. It is not clear whether HR 1858 in particular satisfies this reciprocity requirement.