Databases and the commodification of information

Journal of the Copyright Society of the U.S.A.

Volumn 49, Issue 1, 2001, Pages 131-163

  Baron, Paula ^a  

^a NONE

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EID: 0039330534     PISSN: 08863520     EISSN: None     Source Type: Journal    
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References (173)

1. Dan Schiller, The Information Commodity: A Preliminary View, in CUTTING EDGE: TECHNOLOGY, INFORMATION, CAPITALISM AND SOCIAL REVOLUTION 103 (Jim Davis et al. eds., 1997) [hereinafter Davis].
2. Chris Farrands, The Globalisation of Knowledge and the Politics of Global Intellectual Property: Power, Governance and Technology, in GLOBALIZATION: THEORY AND PRACTICE 175 (Eleonore Kofman & Gillian Youngs eds., 1996) [hereinafter Kofman & Youngs].
3. Although the word "database" is often taken to refer to an electronic compilation, databases do not have to be electronic. In fact, we commonly use paper-based databases such as phone books. In practical terms, however, paper-based compilations are increasingly being overtaken by electronic databases, particularly those accessed on the Internet. The sui generis database protection regimes, referred to later, make clear in their definitions of "database" that they are intended to protect both electronic and non-electronic compilations of information.
4. For an examination of the treatment of compilations in "pre-modern" (that is, pre-1850) copyright decisions, see Paula Baron, Back to the Future: Learning from the Past in the Database Debate, 62 OHIO ST. L.J. 879 (2001).
5. 499 U.S. 340 (1991).
6. Council Directive No. 96/9, OJ L 77/20, 1996 [hereinafter the EU Directive].
7. WIPO Doc. CRNR/DC/6 (Aug. 30, 1996) [hereinafter WIPO Proposal].
8. A number of legislative proposals for database protection have been introduced in the U.S. These include the Database Investment and Intellectual Property Antipiracy Act, H.R. 3531, 104th Cong. (1996), introduced by Rep. Carlos Moorhead; Collections of Information Antipiracy Act, H.R. 2652, 105th Cong. (1997), introduced by Rep. Carlos Moorhead; H.R. 354, The Collections of Information Antipiracy Act, 106th Cong. (1999), introduced by Rep. Howard Coble; and H.R. 1858, 106th Cong. (1999), introduced by Rep. Thomas Bliley.
9. Some commentators have argued for the development of an effective information policy within the U.S. See, e.g., J.H. Reichman & Jonathon A. Franklin, Privately Legislated Intellectual Property Rights: Reconciling Freedom of Contract With Public Good Uses of Information, 147 U. PA. L. REV. 875 (1999). For reasons discussed later in this article, I would argue that national policy to protect the public domain, although important, is insufficient.
10. See generally, e.g., Jessica Litman, The Public Domain, 39 EMORY L.J. 965 (1990); Robert A. Kreiss, Accessibility and Commercialization in Copyright Theory, 43 UCLA L. REV. 1 (1995). In the context of the Internet, see Yochai Benklar, From Consumers to Users: Shifting the Deeper Structures of Regulation Toward Sustainable Commons and User Access, FED. COMM. L. J. 561 (2000). In specific reference to loss of the public domain in the context of legal protection of compilations of information, see, e.g., Jane C. Ginsburg, Copyright, Common Law, and Sui Generis Protection of Databases in the United States and Abroad, 66 U. CIN. L. REV. 151 (1997); Jane C. Ginsburg, Creation and Commercial Value: Copyright Protection of Works of Information, 90 COLUM. L. REV. 1865 (1990); J.H. Reichman & Paul F. Uhlir, Database Protection at the Crossroads: Recent Developments and their Impact on Science and Technology, 14 BERKELEY TECH. L.J. 793 (1999); J.H. Reichman & Pamela Samuelson, Intellectual Property Rights in Data?, 50 VAND. L. REV. 51 (1997).
11. See generally, e.g., Jessica Litman, The Public Domain, 39 EMORY L.J. 965 (1990); Robert A. Kreiss, Accessibility and Commercialization in Copyright Theory, 43 UCLA L. REV. 1 (1995). In the context of the Internet, see Yochai Benklar, From Consumers to Users: Shifting the Deeper Structures of Regulation Toward Sustainable Commons and User Access, FED. COMM. L. J. 561 (2000). In specific reference to loss of the public domain in the context of legal protection of compilations of information, see, e.g., Jane C. Ginsburg, Copyright, Common Law, and Sui Generis Protection of Databases in the United States and Abroad, 66 U. CIN. L. REV. 151 (1997); Jane C. Ginsburg, Creation and Commercial Value: Copyright Protection of Works of Information, 90 COLUM. L. REV. 1865 (1990); J.H. Reichman & Paul F. Uhlir, Database Protection at the Crossroads: Recent Developments and their Impact on Science and Technology, 14 BERKELEY TECH. L.J. 793 (1999); J.H. Reichman & Pamela Samuelson, Intellectual Property Rights in Data?, 50 VAND. L. REV. 51 (1997).
12. See generally, e.g., Jessica Litman, The Public Domain, 39 EMORY L.J. 965 (1990); Robert A. Kreiss, Accessibility and Commercialization in Copyright Theory, 43 UCLA L. REV. 1 (1995). In the context of the Internet, see Yochai Benklar, From Consumers to Users: Shifting the Deeper Structures of Regulation Toward Sustainable Commons and User Access, FED. COMM. L. J. 561 (2000). In specific reference to loss of the public domain in the context of legal protection of compilations of information, see, e.g., Jane C. Ginsburg, Copyright, Common Law, and Sui Generis Protection of Databases in the United States and Abroad, 66 U. CIN. L. REV. 151 (1997); Jane C. Ginsburg, Creation and Commercial Value: Copyright Protection of Works of Information, 90 COLUM. L. REV. 1865 (1990); J.H. Reichman & Paul F. Uhlir, Database Protection at the Crossroads: Recent Developments and their Impact on Science and Technology, 14 BERKELEY TECH. L.J. 793 (1999); J.H. Reichman & Pamela Samuelson, Intellectual Property Rights in Data?, 50 VAND. L. REV. 51 (1997).
13. See generally, e.g., Jessica Litman, The Public Domain, 39 EMORY L.J. 965 (1990); Robert A. Kreiss, Accessibility and Commercialization in Copyright Theory, 43 UCLA L. REV. 1 (1995). In the context of the Internet, see Yochai Benklar, From Consumers to Users: Shifting the Deeper Structures of Regulation Toward Sustainable Commons and User Access, FED. COMM. L. J. 561 (2000). In specific reference to loss of the public domain in the context of legal protection of compilations of information, see, e.g., Jane C. Ginsburg, Copyright, Common Law, and Sui Generis Protection of Databases in the United States and Abroad, 66 U. CIN. L. REV. 151 (1997); Jane C. Ginsburg, Creation and Commercial Value: Copyright Protection of Works of Information, 90 COLUM. L. REV. 1865 (1990); J.H. Reichman & Paul F. Uhlir, Database Protection at the Crossroads: Recent Developments and their Impact on Science and Technology, 14 BERKELEY TECH. L.J. 793 (1999); J.H. Reichman & Pamela Samuelson, Intellectual Property Rights in Data?, 50 VAND. L. REV. 51 (1997).
14. See generally, e.g., Jessica Litman, The Public Domain, 39 EMORY L.J. 965 (1990); Robert A. Kreiss, Accessibility and Commercialization in Copyright Theory, 43 UCLA L. REV. 1 (1995). In the context of the Internet, see Yochai Benklar, From Consumers to Users: Shifting the Deeper Structures of Regulation Toward Sustainable Commons and User Access, FED. COMM. L. J. 561 (2000). In specific reference to loss of the public domain in the context of legal protection of compilations of information, see, e.g., Jane C. Ginsburg, Copyright, Common Law, and Sui Generis Protection of Databases in the United States and Abroad, 66 U. CIN. L. REV. 151 (1997); Jane C. Ginsburg, Creation and Commercial Value: Copyright Protection of Works of Information, 90 COLUM. L. REV. 1865 (1990); J.H. Reichman & Paul F. Uhlir, Database Protection at the Crossroads: Recent Developments and their Impact on Science and Technology, 14 BERKELEY TECH. L.J. 793 (1999); J.H. Reichman & Pamela Samuelson, Intellectual Property Rights in Data?, 50 VAND. L. REV. 51 (1997).
15. See generally, e.g., Jessica Litman, The Public Domain, 39 EMORY L.J. 965 (1990); Robert A. Kreiss, Accessibility and Commercialization in Copyright Theory, 43 UCLA L. REV. 1 (1995). In the context of the Internet, see Yochai Benklar, From Consumers to Users: Shifting the Deeper Structures of Regulation Toward Sustainable Commons and User Access, FED. COMM. L. J. 561 (2000). In specific reference to loss of the public domain in the context of legal protection of compilations of information, see, e.g., Jane C. Ginsburg, Copyright, Common Law, and Sui Generis Protection of Databases in the United States and Abroad, 66 U. CIN. L. REV. 151 (1997); Jane C. Ginsburg, Creation and Commercial Value: Copyright Protection of Works of Information, 90 COLUM. L. REV. 1865 (1990); J.H. Reichman & Paul F. Uhlir, Database Protection at the Crossroads: Recent Developments and their Impact on Science and Technology, 14 BERKELEY TECH. L.J. 793 (1999); J.H. Reichman & Pamela Samuelson, Intellectual Property Rights in Data?, 50 VAND. L. REV. 51 (1997).
16. See generally, e.g., Jessica Litman, The Public Domain, 39 EMORY L.J. 965 (1990); Robert A. Kreiss, Accessibility and Commercialization in Copyright Theory, 43 UCLA L. REV. 1 (1995). In the context of the Internet, see Yochai Benklar, From Consumers to Users: Shifting the Deeper Structures of Regulation Toward Sustainable Commons and User Access, FED. COMM. L. J. 561 (2000). In specific reference to loss of the public domain in the context of legal protection of compilations of information, see, e.g., Jane C. Ginsburg, Copyright, Common Law, and Sui Generis Protection of Databases in the United States and Abroad, 66 U. CIN. L. REV. 151 (1997); Jane C. Ginsburg, Creation and Commercial Value: Copyright Protection of Works of Information, 90 COLUM. L. REV. 1865 (1990); J.H. Reichman & Paul F. Uhlir, Database Protection at the Crossroads: Recent Developments and their Impact on Science and Technology, 14 BERKELEY TECH. L.J. 793 (1999); J.H. Reichman & Pamela Samuelson, Intellectual Property Rights in Data?, 50 VAND. L. REV. 51 (1997).
17. Commodification of knowledge has been contentious, for instance, in universities. This aspect of knowledge appropriation is outside the scope of this article, but has been considered elsewhere. See, e.g., Nick Witheford, Hightech: Cycles and Circuits of Struggle, in Davis, supra note 1, at 195, 213.
18. Andrew Oram, The Sap and Syrup of the Information Age: Coping with Database Protection Laws, at 1, http://www.oreilly.com/andyo/professional/collection_law.htm (last visited Jan. 11, 2002). Some commentators have observed a problem with "information overload," given the range of communications technologies available.
19. See, e.g., Tomas A. Lipinski, The Developing Legal Infrastructure and the Globalization of Information: Constructing a Framework for Critical Choices in the New Millennium Internet - Character, Content and Confusion, 6 RICH. J. L. & TECH. 19 (1999-2000), WL 6 RMDJLT 19, *63.
20. Preamble, WIPO Proposal, supra note 7.
21. Oram, supra note 12, at 1.
22. 17 U.S.C. § 101 (2000) defines a compilation as "a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as whole constitutes an original work of authorship." The term "compilation" includes "collective works." 17 U.S.C. § 103 provides that the subject matter specified in § 102 includes compilations and derivative works, but goes on to specify that copyright in such a work extends only to the material contributed by the author of such a work and does not imply an exclusive right in the pre-existing material. Compilations are guaranteed copyright protection by the Berne Convention for the Protection of Literary and Artistic Works, art. 2(5), and the Agreement on Trade-Related Aspects of Intellectual Property Rights, 1994, art. 10(2) [hereinafter TRIPs]. The latter expressly provides in art. 10(2) that protection should not extend to the data itself.
23. 17 U.S.C. § 101 (2000) defines a compilation as "a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as whole constitutes an original work of authorship." The term "compilation" includes "collective works." 17 U.S.C. § 103 provides that the subject matter specified in § 102 includes compilations and derivative works, but goes on to specify that copyright in such a work extends only to the material contributed by the author of such a work and does not imply an exclusive right in the pre-existing material. Compilations are guaranteed copyright protection by the Berne Convention for the Protection of Literary and Artistic Works, art. 2(5), and the Agreement on Trade-Related Aspects of Intellectual Property Rights, 1994, art. 10(2) [hereinafter TRIPs]. The latter expressly provides in art. 10(2) that protection should not extend to the data itself.
24. For a comprehensive discussion of such works, see Ginsburg, Creation and Commercial Value, supra note 10.
25. See 17 U.S.C. § 102(b) (2000): "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." This language was interpreted in Feist to include facts as well. In Feist it was argued that no one might claim originality in facts, because facts do not owe their origin to an original act of authorship. 499 U.S. 340, 340 (1991). The first person to find and report a particular fact has not created it, but merely discovered its existence. A similar view of "fact discovery" was taken in Bellsouth Adver. & Publ'g Corp. v. Donnelly Info. Publ'g, 999 F.2d 1436, 1442 (1993). However, this notion of "fact discovery" has attracted some criticism from commentators such as Litman, supra note 10, 996-97; Robert C. Denicola, Copyright in Collections of Facts: A Theory for the Protection of Non-fiction Literary Works, 81 COLUM. L. REV. 516, 525 (1981); and Jane C. Ginsburg, Sabotaging and Reconstructing History: A Comment on the Scope of Copyright Protection in Works of History After Hoehling v. Universal City Studios, 29 J. COPYRIGHT SOC'Y 647, 658 (1982).
26. See 17 U.S.C. § 102(b) (2000): "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." This language was interpreted in Feist to include facts as well. In Feist it was argued that no one might claim originality in facts, because facts do not owe their origin to an original act of authorship. 499 U.S. 340, 340 (1991). The first person to find and report a particular fact has not created it, but merely discovered its existence. A similar view of "fact discovery" was taken in Bellsouth Adver. & Publ'g Corp. v. Donnelly Info. Publ'g, 999 F.2d 1436, 1442 (1993). However, this notion of "fact discovery" has attracted some criticism from commentators such as Litman, supra note 10, 996-97; Robert C. Denicola, Copyright in Collections of Facts: A Theory for the Protection of Non-fiction Literary Works, 81 COLUM. L. REV. 516, 525 (1981); and Jane C. Ginsburg, Sabotaging and Reconstructing History: A Comment on the Scope of Copyright Protection in Works of History After Hoehling v. Universal City Studios, 29 J. COPYRIGHT SOC'Y 647, 658 (1982).
27. See 17 U.S.C. § 102(b) (2000): "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." This language was interpreted in Feist to include facts as well. In Feist it was argued that no one might claim originality in facts, because facts do not owe their origin to an original act of authorship. 499 U.S. 340, 340 (1991). The first person to find and report a particular fact has not created it, but merely discovered its existence. A similar view of "fact discovery" was taken in Bellsouth Adver. & Publ'g Corp. v. Donnelly Info. Publ'g, 999 F.2d 1436, 1442 (1993). However, this notion of "fact discovery" has attracted some criticism from commentators such as Litman, supra note 10, 996-97; Robert C. Denicola, Copyright in Collections of Facts: A Theory for the Protection of Non-fiction Literary Works, 81 COLUM. L. REV. 516, 525 (1981); and Jane C. Ginsburg, Sabotaging and Reconstructing History: A Comment on the Scope of Copyright Protection in Works of History After Hoehling v. Universal City Studios, 29 J. COPYRIGHT SOC'Y 647, 658 (1982).
28. J.H. Reichman, Electronic Information Tools - The Outer Edge of World Intellectual Property Law, 17 DAYTON L. REV. 797, 799 (1992).
29. Waterlow Publishers, Ltd. v. Rose, (1990) 17 I.P.R. 493; Scott v. Stanford, 3 L.R. Eq. 718 (1867). U.S. cases upholding sweat of the brow include: Illinois Bell Tel. Co. v. Haines & Co., 683 F. Supp 1204 (N.D. Ill. 1988), aff'd, 905 F.2d 1081 (7th Cir 1990); Jeweler's Circular Publ'g Co. v. Keystone Publ'g Co., 281 F. 83 (2d Cir. 1922).
30. Natalia Yastreboff, Copyright for Online Databases on the Internet (1997), http://www.gtlaw.com.au/pubs/copyrightonline.html.
31. Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991); Fin. Info., Inc. v. Moody's Investors Serv., Inc., 808 F.2d 204 (2d Cir. 1986), cert denied, 484 U.S. 820 (1987); Eckes v. Card Prices Update, 736 F.2d 859 (2d Cir. 1984); Worth v. Selchow & Righter Co., 827 F.2d 569 (9th Cir. 1987).
32. As Michael Schwartz, Copyright in Compilations of Facts: Feist Publications, Inc., v. Rural Telephone Service Co., Inc., 5 EIPR 178, 180 (1991), has pointed out, most arrangement systems for databases are mundane. For instance, most directories are based on geographic area and in alphabetical order. In fact, if they were not mundane, they would not be useful. For an example of this problem, see Bellsouth Adver. & Publ'g Corp. v. Donnelley Info. Publ'g, Inc., 999 F.2d 1436 (11th Cir. 1993) where the work in question was arranged in a way "typical" of business directories. This problem of the lack of scope for creativity was also noted in Feist.
33. See, e.g., Denicola, supra note 17, at 531; Robert A. Gorman, Copyright Protection for the Collection and Representation of Facts, 76 HARV. L. REV. 1569 (1963); Richard L. Brown, Copyright and Computer Databases: The Case of the Bibliographic Utility, 11 RUTGERS COMPUTER & TECH. L.J. 17 (1985); Cecilia D. Moore, Ownership of Access Information: Exploring the Application of Copyright Law to Library Catalogue Records, 4 COMPUTER L.J. 305 (1983).
34. See, e.g., Denicola, supra note 17, at 531; Robert A. Gorman, Copyright Protection for the Collection and Representation of Facts, 76 HARV. L. REV. 1569 (1963); Richard L. Brown, Copyright and Computer Databases: The Case of the Bibliographic Utility, 11 RUTGERS COMPUTER & TECH. L.J. 17 (1985); Cecilia D. Moore, Ownership of Access Information: Exploring the Application of Copyright Law to Library Catalogue Records, 4 COMPUTER L.J. 305 (1983).
35. See, e.g., Denicola, supra note 17, at 531; Robert A. Gorman, Copyright Protection for the Collection and Representation of Facts, 76 HARV. L. REV. 1569 (1963); Richard L. Brown, Copyright and Computer Databases: The Case of the Bibliographic Utility, 11 RUTGERS COMPUTER & TECH. L.J. 17 (1985); Cecilia D. Moore, Ownership of Access Information: Exploring the Application of Copyright Law to Library Catalogue Records, 4 COMPUTER L.J. 305 (1983).
36. DAN SHILLER, DIGITAL CAPITALISM: NETWORKING THE GLOBAL MARKET SYSTEM xiv (1999). Indeed, the "idea of technological revolution has become normative - routine and commonplace - in our technocultural times." KEVIN ROBINS & FRANK WEBSTER, TIMES OF THE TECHNOCULTURE 1 (1999).
37. DAN SHILLER, DIGITAL CAPITALISM: NETWORKING THE GLOBAL MARKET SYSTEM xiv (1999). Indeed, the "idea of technological revolution has become normative - routine and commonplace - in our technocultural times." KEVIN ROBINS & FRANK WEBSTER, TIMES OF THE TECHNOCULTURE 1 (1999).
38. Richard R. John, American Historians and the Concept of the Communications Revolution, in INFORMATION ACUMEN: THE UNDERSTANDING AND USE OF KNOWLEDGE IN MODERN BUSINESS 98, 101 (Lisa Bud-Frierman ed., 1994) [hereinafter Bud-Frierman].
39. This Utopian vision has been readily assumed by politicians around the world, from U.S. ex-Vice President Al Gore announcing "a new Athenian age of democracy," which will be made possible by the communicative efficacy of the "global information highway" to Britain's New Labour which proclaimed: We stand on the threshold of a revolution as profound as that brought about by the invention of the printing press. New technologies, which enable rapid communication to take place in a myriad of different ways across the globe, and permit information to be provided, sought, and received on a scale hitherto unimaginable, will bring fundamental change to all our lives. Some commentators, such as Robins and Webster consider such claims to be essentially unrealistic, "[a]s if the world's problems were simply the consequence of a historical communications deficit." ROBINS & WEBSTER, supra note 24, at 229. Others see the rhetoric signifying more than a lack of realism. For instance, Arthur Kroker and Michael A. Weinstein describe such statements as part of the "pro-technotopia" movement which they claim is "typified by an obsession to the point of hysteria with emergent technologies, and with a consistent and very deliberate attempt to shut down, silence, and exclude any perspectives critical of technotopia." ARTHUR KROKER & MARTIN A. WEINSTEIN, DATA TRASH: THE THEORY OF THE VIRTUAL CLASS 4 (1994).
40. Lipinski, supra note 12, at *1.
41. Martin Campbell-Kelly, The Railway Clearing House and Victorian Data Processing, in Bud-Frierman, supra note 25, at 51-52.
42. Lisa Bud-Frierman, Information Acumen, in Bud-Frierman, supra note 25, at 7, 16.
43. Id.
44. JoAnne Yates, Evolving Information Use in Firms, 1850-1920: Ideology and Information Techniques and Technologies, in Bud-Frierman, supra note 25, at 26, 30. The tendency towards standardisation of knowledge and information is discussed at some length by Tessa Morris-Suzuki, Capitalism in the Computer Age, in Davis, supra note 1, at 57, 69, who refers to this phenomenon as "formatting" and the "scientizing" of creativity.
45. JoAnne Yates, Evolving Information Use in Firms, 1850-1920: Ideology and Information Techniques and Technologies, in Bud-Frierman, supra note 25, at 26, 30. The tendency towards standardisation of knowledge and information is discussed at some length by Tessa Morris-Suzuki, Capitalism in the Computer Age, in Davis, supra note 1, at 57, 69, who refers to this phenomenon as "formatting" and the "scientizing" of creativity.
46. Theodore M. Porter, Information, Power and the View from Nowhere, in BudFrierman, supra note 25, at 217.
47. Id. at 220.
48. For an instance of the way in which "data," "information" and "knowledge" are distinguished, see VICTORIAN LAW REFORM COMMISSION, TECHNOLOGY AND THE LAW, 46 ¶ 4.48 (1999) [hereinafter VICTORIAN LAW REFORM COMMISSION REPORT], where in the context of "knowledge management" it is stated that: Data is defined as a "set of discrete, objective facts about events" which in an organisational sense can be described as "structured records of transaction." Information is basically data with meaning defined as "data that makes a difference" or "data endowed with relevance and purpose." However, the concept of knowledge encapsulates a lot more as neither data nor information carries with it the rich context of human interpretation.
49. VICTORIAN LAW REFORM COMMISSION REPORT, supra note 34, 21 ¶ 2.37: Knowledge management is a business discipline or theory that reflects the increasing importance of knowledge as a corporate asset. The growth in publications, interest and consulting on knowledge management has been meteoric. In line with the rapid growth of publications in the area, there are numerous varied definitions of knowledge management. [The definition adopted by the Committee is as follows]: Knowledge Management caters to the critical issue of organisational adaptation, survival and competence in the face of increasingly discontinuous environmental change. . . . Essentially it embodies organisational processes that seek synergistic combination of data and information processing capacity of information technologies, and the creative and innovative capacity of human beings.
50. Yates, supra note 31, at 26. Yates observes that the magnitude of this development can be seen in the growth (in constant dollars) of total capital in the office equipment industry from $10 million in 1879 to $455 million in 1929. During the twenty years from 1890 to 1910, capital in this industry grew at a much higher rate (194% and 182%) than capital in all U.S. manufacturing (67% and 81%). A study by Marc Porat in 1977 using census data, showed that between the 1870 and 1890 censuses, the information sector grew from 4.8 to 12.4% of the labour force, while the labour force itself grew from 12.5 million to 22.8 million. Campbell-Kelly, supra note 28, at 51-52.
51. John, supra note 25, at 98-99.
52. John notes that Albion traces the communications revolution to 1760, while other commentators, such as Chandler, consider the emergence of the "revolution" in the nineteenth century. Nor is time the only discrepancy: the critical factors in this "revolution" also vary. Id. at 98-104.
53. Thus, Albion stresses innovations that "destroy space" and significantly speed the movement of information, people and goods through the economy. Chandler also acknowledges "speed" but considers new sources of energy, and the ways in which these allow for the transmission of information alone, as critical. Id. at 98-103.
54. ROBINS & WEBSTER, supra note 24, at 101. Davis and Stack express a slightly different view, arguing that what distinguishes our current "information revolution" is simply digitisation. Jim Davis & Michael Stack, The Digital Advantage, In Davis, supra note 1, at 121, 122.
55. "Throughout the 1980s, U.S. businesses invested a staggering $1 trillion in information technology," The Technology Payoff, BUS. WEEK, June 14, 1993, at 57.
56. John Unsworth, New Copyright and Database Regulations: USPTO, WIPO and You, at 7, http://jefferson.village.virginia.edu/≃jmu2m/WIPOut.html (last visited July 27, 2000).
57. Morris-Suzuki, supra note 31, at 61.
58. That is, the process whereby nonmaterial elements such as research, planning and design come to constitute an ever larger share of the total value of economic output. Id. at 31, 58. Today, close to 50% of all business fixed investment in the U.S. is in information technologies. Daniel R. Valente, Database Protection in the Next Century, 17 INFO. TODAY, no. 6 (2000).
59. Unsworth, supra note 42, at 2.
60. Jim Davis et al., Introduction, in Davis, supra note 1, at 1, 6.
61. ROBINS & WEBSTER, supra note 24, at 123.
62. Reichman & Samuelson, supra note 10, at 65.
63. Morris-Suzuki, supra note 31, at 16-17.
64. Davis & Stack, supra note 40, at 125.
65. In 1990, revenues from the database industry in the U.S. were estimated to be worth $9 billion and likely to grow to $19.2 billion by 1994. Brief of the Information Industry Association and ADAPSO, The Computer Software and Services Industry Association, Inc., as amici curiae in support of neither party, at 21 n.17, Feist, cited by John F. Hayden, Copyright of Computer Databases after Feist, 5 HARV. J. L. & TECH. 215, 215 (1991). Between 1991 and 1997, the number of databases in the U.S. increased from 7,637 to 10,338. There has also been a marked commercialisation of the database industry: In 1977, 78% of databases were produced by the public sector; but by 1997 this figure had dropped to 22% while the private sector share increased to 78%: MARTHA E. WILLIAMS, THE STATE OF DATABASES TODAY (1999), quoted in H. REP. No. 106-350, at 9 (1999) (statement by Thomas Bliley).
66. In 1990, revenues from the database industry in the U.S. were estimated to be worth $9 billion and likely to grow to $19.2 billion by 1994. Brief of the Information Industry Association and ADAPSO, The Computer Software and Services Industry Association, Inc., as amici curiae in support of neither party, at 21 n.17, Feist, cited by John F. Hayden, Copyright of Computer Databases after Feist, 5 HARV. J. L. & TECH. 215, 215 (1991). Between 1991 and 1997, the number of databases in the U.S. increased from 7,637 to 10,338. There has also been a marked commercialisation of the database industry: In 1977, 78% of databases were produced by the public sector; but by 1997 this figure had dropped to 22% while the private sector share increased to 78%: MARTHA E. WILLIAMS, THE STATE OF DATABASES TODAY (1999), quoted in H. REP. No. 106-350, at 9 (1999) (statement by Thomas Bliley).
67. Reichman & Samuelson, supra note 10, at 64-65.
68. Martin Kenney, Value Creation in the Late Twentieth Century: The Rise of the Knowledge Worker, in Davis, supra note 1, at 87, 90.
69. Denicola, supra note 17, at 531.
70. Larry Abramson reporting, "All things considered," August 4, 1999.
71. There were, of course, some notable exceptions. See, e.g., Illinois Bell Tel. Co. v. Haines & Co., 683 F. Supp 1204, 1210 (N.D. Ill. 1988), aff'd, 905 F.2d 1081 (7th Cir. 1990) and National Bus. Lists, Inc. v. Dun & Bradstreet, Inc., 552 F. Supp 89, 96 (N.D. Ill. 1982), where information was protected even against remanipulation.
72. Ginsburg, Creation and Commercial Value, supra note 10, at 1892.
73. Kenney, supra note 53, at 95.
74. Davis & Stack, supra note 40, at 12.
75. 736 F.2d 859, 862 (2d Cir. 1984).
76. A directive is a secondary community law that binds member states but requires implementation by the enactment of domestic laws in each member state within a specified time. Terry M. Sanks, Database Protection: National and International Attempts to Provide Legal Protection for Databases, 25 FLA. ST. U. L. REV. 991, 996 (1998). In July 1999, Greece, Ireland, Luxembourg and Portugal were referred to the European Court of Justice for failing to implement the directive in time.
77. Reichman notes that, originally, the Directive was based upon the Nordic Catalogue Rule, which gives short-term copyright protection for compilations that fail to satisfy the requirements of copyright law. It prevents slavish reproduction of all or part of the original work for a period of ten years from the date of first publication. Reichman, supra note 18, at 828.
78. EU Directive art. 7(1) confers a right upon the maker of a database that can show "there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents."
79. Id.
80. Reichman & Samuelson, supra note 10, at 87.
81. EU Directive art. 10(1).
82. Julius J. Marke, Database Bills Pending in Congress, N.Y. L.J., Aug, 17, 1999, at 2, writing with specific regard to similar provisions in H.R. 354 claims: "Every time a database is updated on an ongoing basis and involves a substantial investment, a new 15-year term begins to run. When a database exists only online and is constantly updated, how does the user distinguish the older pre-existing version from the new one to determine the term of 15 years? Then again, how would the user gain access to the pre-existing version?"
83. EU Directive art. 8(1).
84. Id. art. 15.
85. Id. art. 9.
86. Id. arts. 8(2), 8(3). Recital 50 provides that these articles function as a limitation on the exceptions in article 9.
87. It has been pointed out that, since fair use is an explicit tool to serve the public interest, its application in cyberspace will shape the boundaries of property and behavior with regards to online content. The reduction of fair use by such sui generis models has significant implications, then, for the culture of information usage. See also Ruth Okediji, Givers, Takers and Other Kinds of Users: A Fair Use Doctrine for Cyberspace, 53 FLA. L. REV. 107, 112-13 (2001).
88. See note 4 supra.
89. Reichman & Samuelson, supra note 10, at 55.
90. The fact that this debate has taken place in the U.S. has an international significance because the U.S. is currently the world leader in the creation of informational databases. Valente, supra note 44. In Europe, the major opposition to sui generis database collection was organised by the Association for Information Management, the European Council of Information Associations and the European Copyright Users Platform. See also http:// www.aslib.co.uk.
91. This is because "originality" is seen as a constitutional requirement for the grant of copyright protection. See also Feist at 1290 and the cases cited therein. See also Yochai Benkler, Constitutional Bounds of Database Protection: The Role of Judicial Review in the Creation and Definition of Private Rights in Information, 15 BERKELEY TECH. L.J. 535 (2000).
92. "The opposition in the U.S. includes organisations such as the Library of Congress, the National Academy of Sciences, the National Academy of Engineering and the National Education Association, as well as some publishers, telecommunications companies, internet service providers and other information and information technology interests." Unsworth, supra note 42, at 4. Proponents of sui generis laws modelled on the EU Directive included the NASDAQ Stock Market, the American Medical Association, McGraw Hill and Phillips Publishing. Dee Ann Divis, Database Legislation that Bites, GEO INFO. SYS., May 1998, at 1. The National Association of Realtors also entered the fray on the side of increased protection, largely because of the perceived ease of appropriation of online listings. Dan Gordon, Fight Brewing Over Push to Stop Online Piracy, L.A. TIMES, Aug. 20, 2000, at 4.
93. "The opposition in the U.S. includes organisations such as the Library of Congress, the National Academy of Sciences, the National Academy of Engineering and the National Education Association, as well as some publishers, telecommunications companies, internet service providers and other information and information technology interests." Unsworth, supra note 42, at 4. Proponents of sui generis laws modelled on the EU Directive included the NASDAQ Stock Market, the American Medical Association, McGraw Hill and Phillips Publishing. Dee Ann Divis, Database Legislation that Bites, GEO INFO. SYS., May 1998, at 1. The National Association of Realtors also entered the fray on the side of increased protection, largely because of the perceived ease of appropriation of online listings. Dan Gordon, Fight Brewing Over Push to Stop Online Piracy, L.A. TIMES, Aug. 20, 2000, at 4.
94. Leo Marx & Bruce Mazlish, Introduction, in PROGRESS: FACT OR ILLUSION? 1, 6-7 (Leo Marx & Bruce Mazlish eds., 1996).
95. Bruce Mazlish, Progress: A Historical and Critical Perspective, in id. at 27, 34.
96. Id. at 41.
97. Id. at 42-43. Mazlish distinguishes between scientific progress, moral progress and material progress. These three types of progress interact in a variety of ways. He also points out that scientific progress, in particular, is often nonlinear, something that is often overlooked.
98. Morris-Suzuki, supra note 31, at 66.
99. In this context, it is worth noting that we tend to use the terms "information society" and "information economy" interchangeably.
100. Schiller, supra note 1, at 108.
101. Kenney, supra note 53, at 88.
102. Joshua Lederberg, President-emeritus of Rockefeller University, quoted in Dee Ann Divis, Curbing Information Piracy - Database Copyright Law Resurfaces, GEO INFO. SYS., Jan. 1, 2001.
103. Id. at 129.
104. Environmental and remote sensing imagery, data that can only be collected once, are examples of this latter problem. Divis, supra note 77, at 3.
105. An interview with A. Sivanandan, Heresies and Prophesies: The Social and Political Fallout of the Technological Revolution, in Davis, supra note 1, at 287-96. See also Oram, note 12, at 2.
106. Unsworth, supra note 42, at 7. Databases have been seen to be particularly important in distance education: testimony of Nils Hasselmo, President of the Association of American Universities, before the Committee on Science, U.S. House of Representatives.
107. See, e.g., Matthew Bender & Co. v. West Publ'g Co., 158 F.3d 674, 693 (2d Cir. 1998) for an example of a copyright claim for government information created and sold by a commercial entity.
108. ROBINS & WEBSTER, supra note 24, at 124. The authors note that: The annual publication of social statistics (providing information on family structures, health, education, housing and the like), the General Household Survey, was "suspended" in 1997 with serious doubts as to whether it would be resurrected. This followed massive above-inflation increases in the price of government publications . . . . Relatedly, reliable information on poverty in the U.K. is difficult to obtain in the 1990s because there is no commercial interest.
109. Kregos v. Associated Press, 937 F.2d 700 (2d Cir. 1991); CCC Info. Servs., Inc. v. Maclean Hunter Mkt. Reports, Inc., 44 F.3d 61 (2d Cir. 1994).
110. This doctrine provides that, in some fact works, the expression available to a subsequent author to convey information already published by an originator will be very limited. The idea and the expression then merge, so that an action for copyright infringement by the originator will not be successful.
111. CCC Info. Servs., 44 F. 3d at 71.
112. Attempts to restore copyright protection have not been the only ways in which database owners have sought to regain lost ground post-Feist. One particularly notable attempt has been to invoke the law of trespass to chattels to counter the problem of unauthorised searching of, and linking to, online databases. See also Lisa M. Ferri & Robert G. Gibbons, Public or Private Property: The Debate Over Ownership, Access and Use of Databases in Cyberspace, INTELL. PROP. TODAY, Sept. 2000, discussing eBay, Inc. v. Bidder's Edge, Inc., No. C-99-21200 RMW, 2000 US DIST LEXIS 7287 (N.D. Cal. May 23, 2000); Ticketmaster Corp. v. Tickets.com, Inc., 54 U.S.P.Q.2d 1344 (C.D. Cal. 2000); and MySimon, Inc. v. Priceman, LLC, No. 5:99cv20939 (N.D. Cal. Feb. 29, 2000).
113. U.S. Copyright Office, Report on Legal Protection for Databases 74 (1997), http://lcweb.loc.gov/copyright/more.html#rpt.
114. See note 41 supra.
115. This lack of evidence of significant market failure has also been noted in other areas of intellectual property, such as patents. Edward P. Lazear, Intellectual Property: A Discussion of Problems and Solutions, in CAPITAL FOR OUR TIME: THE ECONOMIC, LEGAL AND MANAGEMENT CHALLENGES OF INTELLECTUAL CAPITAL 107-22 (Nicholas Imparato ed., 1999).
116. COMMITTEE ON INTELLECTUAL PROPERTY RIGHTS AND THE EMERGING INFORMATION INFRASTRUCTURE, COMPUTER SCIENCE AND TELECOMMUNICATIONS BOARD, NATIONAL RESEARCH COUNCIL, THE DIGITAL DILEMMA: INTELLECTUAL PROPERTY IN THE INFORMATION AGE 9 (2000) [hereinafter THE DIGITAL DILEMMA].
117. Id. at 7.
118. Id. at 8.
119. Brian D. Negin, Database Protection in Israel, at *2, http://www.itpolicy.gov.il/english/dataprot.html (last visited Dec. 18, 2000).
120. Such as digital encryption, watermarks, download limitations, access controls and both hardware and software-based trusted systems. See COMMITTEE FOR A STUDY ON PROMOTING ACCESS TO SCIENTIFIC AND TECHNICAL DATA FOR THE PUBLIC INTEREST, COMMISSION ON PHYSICAL SCIENCES, MATHEMATICS AND APPLICATIONS, NATIONAL RESEARCH COUNCIL, A QUESTION OF BALANCE: PRIVATE RIGHTS AND THE PUBLIC INTEREST IN SCIENTIFIC AND TECHNICAL DATABASES 2 (1999) [hereinafter A QUESTION OF BALANCE]. The Digital Millenium Copyright Act, Pub. L. No. 105-304, tit. I, § 103(a), 112 Stat. 2863 (1998) (codified at 17 U.S.C. § 1201(a)-(b) (2000)) encourages such technological protection measures and penalises those who distribute technologies that circumvent protection.
121. Such as digital encryption, watermarks, download limitations, access controls and both hardware and software-based trusted systems. See COMMITTEE FOR A STUDY ON PROMOTING ACCESS TO SCIENTIFIC AND TECHNICAL DATA FOR THE PUBLIC INTEREST, COMMISSION ON PHYSICAL SCIENCES, MATHEMATICS AND APPLICATIONS, NATIONAL RESEARCH COUNCIL, A QUESTION OF BALANCE: PRIVATE RIGHTS AND THE PUBLIC INTEREST IN SCIENTIFIC AND TECHNICAL DATABASES 2 (1999) [hereinafter A QUESTION OF BALANCE]. The Digital Millenium Copyright Act, Pub. L. No. 105-304, tit. I, § 103(a), 112 Stat. 2863 (1998) (codified at 17 U.S.C. § 1201(a)-(b) (2000)) encourages such technological protection measures and penalises those who distribute technologies that circumvent protection.
122. Such as digital encryption, watermarks, download limitations, access controls and both hardware and software-based trusted systems. See COMMITTEE FOR A STUDY ON PROMOTING ACCESS TO SCIENTIFIC AND TECHNICAL DATA FOR THE PUBLIC INTEREST, COMMISSION ON PHYSICAL SCIENCES, MATHEMATICS AND APPLICATIONS, NATIONAL RESEARCH COUNCIL, A QUESTION OF BALANCE: PRIVATE RIGHTS AND THE PUBLIC INTEREST IN SCIENTIFIC AND TECHNICAL DATABASES 2 (1999) [hereinafter A QUESTION OF BALANCE]. The Digital Millenium Copyright Act, Pub. L. No. 105-304, tit. I, § 103(a), 112 Stat. 2863 (1998) (codified at 17 U.S.C. § 1201(a)-(b) (2000)) encourages such technological protection measures and penalises those who distribute technologies that circumvent protection.
123. A particular area of concern has been so-called "shrink-wrap" licenses. See M. A. Mortenson Co. v. Timberline Software Corp., 970 P.2d 803 (Wash. Ct. App. 1999); Green Book Int'l Corp. v. InUnity Corp., 2 F. Supp. 2d 112 (D. Mass. 1998); ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996), rev'g 908 F. Supp. 640 (W. D. Wis. 1996). A recent article by Jane Kaufman Winn and James R. Wrathall, Who Owns the Customer? The Emerging Law of Commercial Transactions in Electronic Customer Data, BUS. LAW. (2000), advocates use of licenses because of the law's failure to keep up with technological developments in database production and dissemination. For a general discussion of the application of contract law in the information age, see Raymond T. Nimmer, Through the Looking Glass: What Courts and UCITA Say About the Scope of Contract Law in the Information Age, 38 DUQ. L. REV. 255 (2000).
124. A particular area of concern has been so-called "shrink-wrap" licenses. See M. A. Mortenson Co. v. Timberline Software Corp., 970 P.2d 803 (Wash. Ct. App. 1999); Green Book Int'l Corp. v. InUnity Corp., 2 F. Supp. 2d 112 (D. Mass. 1998); ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996), rev'g 908 F. Supp. 640 (W. D. Wis. 1996). A recent article by Jane Kaufman Winn and James R. Wrathall, Who Owns the Customer? The Emerging Law of Commercial Transactions in Electronic Customer Data, BUS. LAW. (2000), advocates use of licenses because of the law's failure to keep up with technological developments in database production and dissemination. For a general discussion of the application of contract law in the information age, see Raymond T. Nimmer, Through the Looking Glass: What Courts and UCITA Say About the Scope of Contract Law in the Information Age, 38 DUQ. L. REV. 255 (2000).
125. See also Reichman & Franklin, supra note 9.
126. Dun & Bradstreet Master Agreement ¶ 3.3, reprinted in U.S. Copyright Office, supra note 97, at 23.
127. See, e.g., Schwartz, supra note 22, recommending that, in light of the decision in Feist, compilations should be kept confidential and only released under written confidentiality agreements, and deliberate errors should be put into databases to assist in proving copying.
128. See, e.g., Joshua S. Bauchner, Re-establishing the Founding Principles of Copyright in the Digital Age, 5 VA. J. L. & TECH. 38 (2000).
129. Oram, supra note 12, at 8, quoting Prue Adler of the Association of Research Libraries; Farrands, supra note 2, at 182.
130. Lipinski, supra note 12, at *7.
131. KROKER & WEINSTEIN, supra note 26, at 10-11. ROBINS & WEBSTER, supra note 24, at 106 also observe this trend, observing that "people themselves are increasingly relegated to the status of data; their actions and transactions are recorded. . . . Increasingly, people are objects of surveillance: objects of knowledge and information."
132. For recent discussions of this problem, see Pamela Samuelson, Privacy as Intellectual Property?, 52 STAN. L. REV. 1125 (2000); Jessica Litman, Information Privacy/Information Property, 52 STAN. L. REV. 1283 (2000); Julie E. Cohen, Examined Lives: Informational Privacy and the Subject as Object, 52 STAN. L. REV. 1373 (2000); Ann Bartow, Our Data, Ourselves: Privacy, Propertization, and Gender, 34 U.S.F. L. REV. 633 (2000). Bartow notes that technology not only allows the collation of existing information, but the collection of new information also, for instance, by "clickstream" monitoring. She also notes that data collection will be used to deny, rather than sell people material things by combining data from credit reports with demographics and other information.
133. For recent discussions of this problem, see Pamela Samuelson, Privacy as Intellectual Property?, 52 STAN. L. REV. 1125 (2000); Jessica Litman, Information Privacy/Information Property, 52 STAN. L. REV. 1283 (2000); Julie E. Cohen, Examined Lives: Informational Privacy and the Subject as Object, 52 STAN. L. REV. 1373 (2000); Ann Bartow, Our Data, Ourselves: Privacy, Propertization, and Gender, 34 U.S.F. L. REV. 633 (2000). Bartow notes that technology not only allows the collation of existing information, but the collection of new information also, for instance, by "clickstream" monitoring. She also notes that data collection will be used to deny, rather than sell people material things by combining data from credit reports with demographics and other information.
134. For recent discussions of this problem, see Pamela Samuelson, Privacy as Intellectual Property?, 52 STAN. L. REV. 1125 (2000); Jessica Litman, Information Privacy/Information Property, 52 STAN. L. REV. 1283 (2000); Julie E. Cohen, Examined Lives: Informational Privacy and the Subject as Object, 52 STAN. L. REV. 1373 (2000); Ann Bartow, Our Data, Ourselves: Privacy, Propertization, and Gender, 34 U.S.F. L. REV. 633 (2000). Bartow notes that technology not only allows the collation of existing information, but the collection of new information also, for instance, by "clickstream" monitoring. She also notes that data collection will be used to deny, rather than sell people material things by combining data from credit reports with demographics and other information.
135. For recent discussions of this problem, see Pamela Samuelson, Privacy as Intellectual Property?, 52 STAN. L. REV. 1125 (2000); Jessica Litman, Information Privacy/Information Property, 52 STAN. L. REV. 1283 (2000); Julie E. Cohen, Examined Lives: Informational Privacy and the Subject as Object, 52 STAN. L. REV. 1373 (2000); Ann Bartow, Our Data, Ourselves: Privacy, Propertization, and Gender, 34 U.S.F. L. REV. 633 (2000). Bartow notes that technology not only allows the collation of existing information, but the collection of new information also, for instance, by "clickstream" monitoring. She also notes that data collection will be used to deny, rather than sell people material things by combining data from credit reports with demographics and other information.
136. See the discussion relating to children and the issue of information collection in Lipinski, supra note 12, at *47 nn.
137. Morris-Suzuki, supra note 31, at 62.
138. John Perry Barlow, Selling Wine Without Bottles: The Economy of Mind on the Global Net, at http://www.eff.org/pub/Publications/John_Perry_Barlow/ HTML/idea_economy_article.html (last visited Mar. 3, 1999) credits Stewart Brand with the statement.
139. Morris-Suzuki, supra note 31, at 62.
140. Farrands, supra note 2, at 182.
141. The Digital Dilemma, supra note 100, at 23.
142. Witheford, supra note 11, at 227.
143. The Digital Dilemma, supra note 100, at 4.
144. Id. at 11. Okediji notes, however, that it is increasingly the case that when a copyright owner expresses concern over activity in cyberspace, there is a tendency to conclude that infringement has taken place. This is due in part to the assumption "that cyberspace is a place that, by its very nature, engenders infringing activity. The result is that doctrines designed to mediate between competing interests are constrained or supplanted by a variety of methods to protect the way technology makes it easier to collect rent from users. Regulation of content use in cyberspace in favor of owners is thus often a reaction to the phenomenon of cyberspace itself." Okediji, supra note 72, at 114.
145. Morris-Suzuki, supra note 31, at 24.
146. Id.
147. Id. Given that many innovations occur by a single or series of "fortuitous" coincidences, this "steady flow" of innovation may not be possible.
148. Some industry spokespersons have recognised this inherent tension between protection and dissemination of information. Speaking in the context of calls from the National Association of Realtors, Stephen Kropper, president of Domania.com, which provides online access to public real estate data and information, said: "This is part of a long transition process from the data being completely hidden from public view to Realtors recognising that getting the data in the public domain is critical to their doing their jobs. Clearly the data are proprietary and no one should have the right to steal them. But from a marketing perspective, broader dissemination of information - not less - will advance both the real estate agent's cause and the homeowners." Gordon, supra note 77.
149. Jennifer Gray, Antitrust eBay: Protecting IP Or Maintaining A Monopoly?, 16 E-COMMERCE 1, 3 (2000), notes that the F.T.C. has provided testimony on both H.R. 354 and H.R. 1858, pointing out the dangers that single-source data providers present to innovation and competition and urging the development of policies to prevent the further entrenchment of market power of single source or monopoly data providers. She goes on to observe that the F.T.C. has also expressed its concern about growing concentration in database-driven markets in recent cases such as In re Softsearch Holdings, Inc, 5 Trade Reg. Rep. (CCH) ¶ 24,171 (F.T.C. July 28, 1997); In re Automatic Data Processing 5 Trade Reg. Rep. (CCH) ¶ 24,006 (F.T.C. Mar. 27, 1996); and In re Provident Cos., No. 991-0101, 64 Fed. Reg. 27,991 (F.T.C. May 24, 1999).
150. Oram, supra note 12, at 12. See A Question of Balance, supra note 104, at 2: "A principal concern of the committee is that the development of any new database protection measures directed toward protecting private-sector investments take into account the need to promote access to and subsequent use of S&T data and databases not only by the not-for-profit sector, but by for-profit creators of derivative databases as well."
151. Bauchner, supra note 109, at 45 nn.; John H. Barton, Intellectual Property Rights and Innovation, in CAPITAL FOR OUR TIME: THE ECONOMIC, LEGAL AND MANAGEMENT CHALLENGES OF INTELLECTUAL CAPITAL 123, 130-31 (Nicholas Imparato ed., 1999).
152. See, e.g., Ian C. Ballon, Rethinking Cyberspace Jurisdiction in Intellectual Property Disputes, 21 U. PA. J. OF INT'L ECON. L. 481 (2000); Michael J. O'Sullivan, International Copyright: Protection for Copyright Holders in the Internet Age, 13 N.Y. INT'L L. REV. 1 (2000).
153. See, e.g., Ian C. Ballon, Rethinking Cyberspace Jurisdiction in Intellectual Property Disputes, 21 U. PA. J. OF INT'L ECON. L. 481 (2000); Michael J. O'Sullivan, International Copyright: Protection for Copyright Holders in the Internet Age, 13 N.Y. INT'L L. REV. 1 (2000).
154. Gerhard Fuchs & Andrew M. Koch, The Globalization of Telecommunications and the Issue of Regulatory Reform, in Kofman & Youngs, supra note 2, at 163-74 (1996).
155. Id. at 164-65.
156. Lipinski, supra note 12, at *9.
157. Philip G. Cerny, What Next for the State?, in Kofman & Youngs, supra note 2, at 123-37.
158. As observed in the quotation, a problem recognised by the TRIPs agreement. Simply determining jurisdiction in disputes involving the World Wide Web can be difficult. See, e.g., Bochan v. La Fontaine, No. Civ.A. 98-1749-A, 1999 US DIST LEXIS 8253 (E.D. Va. May 26, 1999); Millennium Enters., Inc. v. Millennium Music, LP, 33 F. Supp. 2d 907 (D. Ore. 1999); Bensusan Rest. Corp. v. King, 937 F. Supp. 295 (S.D.N.Y. 1996), aff'd, 126 F.3d 25 (2d Cir. 1997); Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414 (9th Cir. 1997).
159. The Digital Dilemma, supra note 100, at 127. As an illustration of this problem in the context of computer software, see United States v. LaMacchia, 871 F. Supp. 535, 536 (D. Mass. 1994). In this case, LaMacchia devised a scheme to allow free dissemination of popular software and games through an electronic bulletin board.
160. The Digital Dilemma, supra note 100, at 11. See also Oscar H. Gandy, Jr, Exploring Identity and Identification in Cyberspace, 14 NOTRE DAME J. L., ETHICS AND PUB. POL'Y 1085 (2000); and Bartow, supra note 112, at 3, noting from a gender perspective that cyberspace offers an opportunity for social participation free of gender constraints, the closest thing to people being "brains in boxes."
161. The Digital Dilemma, supra note 100, at 11. See also Oscar H. Gandy, Jr, Exploring Identity and Identification in Cyberspace, 14 NOTRE DAME J. L., ETHICS AND PUB. POL'Y 1085 (2000); and Bartow, supra note 112, at 3, noting from a gender perspective that cyberspace offers an opportunity for social participation free of gender constraints, the closest thing to people being "brains in boxes."
162. "The role of government will be changed utterly. In the online environment the boundaries of government and private sector activity become increasingly blurred. Radical new ways of governing need to be explored in a new found collaboration between government and business." VICTORIAN LAW REFORM COMMISSION REPORT, supra note 34, at 56 ¶ 5.6.
163. The EU Directive is not only applicable to member states: It must also be implemented in the additional states of the European Economic Area (Iceland, Liechtenstein, and Norway); and Central and Eastern European States also agreed to provide for an equivalent level of protection by December 31, 1999. Thomas Hoeren, EU Leads World Towards Database Protection, IP WORLDWIDE, Aug. 1997.
164. Hoeren, supra note 139. "Not only does this direct electronic pirates abroad to American databases, it also encourages European producers to pillage American databases, apparently all under the protection of European law." Lynne O. Henderson, President of Doane Agricultural Services Corporation, in a March 18, 1999 hearing on H.R. 354 before the House Judiciary Committee's Subcommittee on Courts and Intellectual Property, reported by Dee Ann Divis, supra note 86.
165. Morris-Suzuki, supra note 31, at 24.
166. Shiller, supra note 24, at xiv.
167. Davis & Stack, supra note 40, at 132. The development of new information products is proceeding at an extraordinary rate. One such development is 3D printing, reported by New Scientist, Sept. 30, 2000, whereby "objects" (or at least, the information that allows for the construction of objects) can potentially be downloaded from the Internet and printed on a domestic 3D printer. Needless to say, if realised, this could dramatically alter both manufacturing and transport industries.
168. Morris-Suzuki, supra note 31, at 69.
169. Davis & Stack, supra note 40, at 133.
170. Lipinski, supra note 12.
171. Farrands, supra note 2, at 175.
172. A view shared by others. See, e.g., Bauchner, supra note 109, at 59, who argues that "[t]he democratic ideal that information should be treated as a public good is congruent with the Internet community's ideal that 'information wants to be free.' Accordingly, an over-expansive copyright regime, founded upon market motivations, will ultimately fail when confronted by the effects of global democratization strengthened by the power of the Internet."
173. Yochai Benkler, An Unhurried View of Private Ordering in Information Transactions, 53 VAND. L. REV. 2063, 2064 (2000), argues that laws facilitating the enclosure of the information environment are not only potentially unconstitutional but also socially irresponsible because of the potential for concentration and commercialisation of information production and the resulting homogenisation of the information thus produced.