New threat to access to information--sports, trains, stocks, laws,
Lucys
lbs at aa.net
Sun Nov 17 13:53:52 PST 1996
FYI: interesting topic.
--
Lucy S. lbs at aa.net
Seattle, Washington USA
---------- Forwarded message ----------
Date: Sun, 17 Nov 1996 09:45:37 -0800 (PST)
Subject: New threat to access to information--sports, trains, stocks, laws, ...
Resent-From: owner-info-gnu at prep.ai.mit.edu
X-Resent-By: info-gnu-request at prep.ai.mit.edu
[The Free Software Foundation is re-posting this article to inform you
about a dangerous threat to the public right to access and use many
kinds of information.
This article is long, but quite readable. It uses sports statistics
as an example, but the problem extends to any sort of facts that can
be kept in a data base. Please do read it.]
Date: Sun, 10 Nov 1996 12:36:34 -0500 (EST)
From: James Love <love at tap.org>
Subject: Sports Statistics to Be Regulated Under WIPO Treaty (fwd)
- -----------------------------------------------------------------
Info-Policy-Notes - A newsletter available from listproc at tap.org
- -----------------------------------------------------------------
INFORMATION POLICY NOTES
NOVEMBER 10, 1996
Government Proposes New Regulation of
Sports Statistics and other "facts"
James Love
Consumer Project on Technology
http://www.essential.org/cpt
love at tap.org; 202/387-8030*
November 10, 1996
This issue of INFO-POLICY-NOTES was formatted in 12 point
courier, with 1 inch margins. An HTML version of this note is
available at http://www.essential.org/cpt/ip/wipo-sports.html
INTRODUCTION
Sports fans in the United States will be surprised to learn
that U.S. Government officials are pressing for the adoption of
an International treaty that will (if enacted) significantly
change the ways sports statistics are controlled and
disseminated. The treaty isn't specifically directed at sports
statistics -- it is a much broader attempt to create a new
property right in facts and other data now in the public domain -
- - but it will have an enormous impact on the legal rights
exercised by the National Football League (NFL), Major League
Baseball (MLB), the National Basketball Association (NBA), the
National Hockey League (NHL) and virtually all other professional
or amateur athletic leagues. [The same treaty will radically
affect the way that stock prices, weather data, train schedules,
data from AIDS research and other facts are controlled, but this
note will focus on the issue of sports statistics, a topic that
illustrates the broad impact of the treaty].
This comes at the same time the NBA and other sports
franchises are stepping up their efforts to control the real time
dissemination of sports statistics through the Internet or with
wireless paging devices. [See, for example,
http://www.news.com/News/Item/0,4,3208,00.html]. The treaty,
however, addresses different and much more fundamental issues
regarding ownership of information.
If the treaty is approved and implemented, sports leagues
will have far broader powers to dictate the terms and conditions
under which sport statistics are reported and disseminated.
Nolan Ryan's Earned Run Average (ERA), the number of tackles or
quarterback sacks by Lawrence Taylor, Cal Ripken's career batting
average, Bobby Hull's career assists, the number of steals by
your favorite NBA point guard, and similar information will be
"owned" by sports leagues. According to the proposed treaty (and
legislation introduced in the 104th Congress to implement the
treaty), the NFL, NBA, NHL and MLB will have the right to prevent
anyone from publishing these and other statistics without express
permission from the sports league. This will include the right
to control access to the historical archives of sports
statistics, and even to dictate who can publish the box scores
from a game or print a pitcher's ERA on the back of a baseball
card.
The proposals for a new legal environment for publishing
facts are outlined in a draft treaty on "databases" that will be
considered at a December 1996 meeting of the World Intellectual
Property Organization (WIPO), in Geneva, Switzerland. [See
www.public-domain.org/database/database.html] The proposal would
require the United States and other countries to create a new
property right for public domain materials. "Texts, sounds,
images, numbers, facts, or data representing any other matter or
substance," will be protected. [See the appendix for a more
complete definition].
The treaty seeks, for the first time, to permit firms to
"own" facts they gather, and to restrict and control the
redissemination of those facts. The new property right would lie
outside (and on top) of the copyright laws, and create an
entirely new and untested form of regulation that would radically
change the public's current rights to use and disseminate facts
and statistics. American University Law Professor Peter Jaszi
recently said the treaty represents "the end of the public
domain."
Copies of the proposed treaty, a federal register notice
asking for public comment, and independent commentary can be
found at:
http://www.public-domain.org/database/database.html
WHO IS PUSHING FOR THE DATABASE TREATY?
In 1991, the US Supreme Court ruled (in the Feist decision)
that the facts from a telephone "White Pages" directory of names,
addresses and phone numbers were not protected under the
copyright laws, and that in general, "facts" could not be
copyrighted by anyone. The Feist decision alarmed several large
database vendors, who crafted this new "sui generis" property
right that would protect facts, and just about everything else.
[The vendors have already succeeded in obtaining a directive on
database proposal from the European Union, although no European
country has yet passed legislation to implement the treaty]. The
most active supporter of this new property right is West
Publishing, the Canadian legal publisher. A West Publishing
employee chairs a key ABA subcommittee which wrote a favorable
report on the treaty. A number of very large British and Dutch
database vendors are also lobbying hard for the treaty.
West wants the new property right to protect the "page
numbers" and "corrections" it adds to the judicial opinions it
publishes in paper bound books. Telephone companies want to
protect the names, addresses and telephone numbers they publish,
and other database vendors what to protect scientific data or
other non-copyrighted government information they publish. In
seeking to protect these items, the treaty was written to stamp
"owned by" labels on a vast sea of information now in the public
domain. Copyright experts J.H. Reichman and Pamela Samuelson
say it is the "least balanced and most potentially anti-
competitive intellectual property rights ever created."
[http://ksgwww.harvard.edu/iip/reisamda.html]
There is an active debate within the Clinton Administration
over the proposed treaty. Bruce Lehman, the controversial head
of the Patent and Trademark Office (PTO) is pushing for adoption
of the treaty this December. Most administration official don't
have a clue what the database treaty does. Some people think it
is a minor tinkering with the current copyright law. No one in
the government has sought to understand the significance of the
proposal in terms of the new rights to "own" facts, and until
recently no one was aware that the treaty was so broad that it
would change the way sports or financial statistics were
controlled.
HOW WILL THE TREATY WORK?
In Feist, the Supreme Court noted:
(a) Article I, Sec. 8, cl. 8, of the Constitution mandates
originality as a prerequisite or copyright protection. The
constitutional requirement necessitates independent creation
plus a modicum of creativity. Since facts do not owe their
origin to an act of authorship, they are not original and,
thus, are not copyrightable.
[From the Syllabus of the opinion, at
http://www.law.cornell.edu/supct/classics/499_340v.htm]
Since facts cannot be copyrighted, the supporters of the
treaty have framed this as a new "sui generis" property right,
which will have a separate statutory framework. "Originality" or
"authorship" will not be required. "Texts, sounds, images,
numbers, facts, or data representing any other matter or
substance," will be protected. The information can be stored in
"all forms or media now known or later developed." Both published
and confidential information will be covered. The only thing
required is a "substantial investment in the collection,
assembly, verification, organization or presentation of the
contents" of the protected work. The "rightholder" will have
extremely broad powers to "authorize or prohibit the extraction
or utilization" of the information from the protected database.
It takes a while for the implications of this new system to
sink in. Some facts can be independently gathered, like the
number of baseball games played in a year, the winners or losers
of a tennis match, or the scores of a football game. For these
data, there may exist several sources for the data. However,
other facts are, by their very nature, only available from a
single source, and will be controlled by monopolies. For
example, baseball leagues employ scorekeepers who determine if a
batter is credited with a hit or if a fielder committed an error,
if a hit is reported as a single or double, or if an errant pitch
is scored as a wild pitch or a passed ball. The league makes a
"substantial investment" in the collection and maintenance of
this data, which it disseminates to the press, and also stores
and maintains in a database, through an arrangement with the
Elias Sports Bureau. These data cannot be independently
collected - and under the proposed database treaty, the league
would own the facts themselves, and could dictate the terms under
which these facts are published or redisseminated.
The NFL employs four persons who keep track of the play-by-
play action for each game. They write up four separate reports,
which are used to create a single official "box score." The final
product is supervised by the Elias Sports Bureau, as a "work for
hire" product, which is owned by the NFL. The NFL box score is
very detailed, and includes analysis of each play. It records
the league's statistics for the number of yards gained (or lost)
on each play, who is credited with a tackle or a quarterback
sack, or the number return yards on a kickoff or pass
interception, and many other items. While someone who attended a
football game could make an independent estimate of these items,
it would likely be different from the official statistics, due to
the inherent difficulty in measuring or assigning credit for
performance on the field. The NFL's box score is given to the
press, which uses the data to create its own news media reports.
An attorney who represents the National Football League
(NFL) told us that the NFL has an interest in insuring that there
is an "official" source of the statistics, which are gathered
with an appropriate standard of care and that the NFL "protects
the official designation" of its statistics. These data are used
for making decisions on the Hall of Fame, and to create special
reports and information products, which the NFL provides to third
parties, often for a fee.
Virtually all of the major league sports leagues have some
system for creating statistics, disseminating the information to
the press, storing the historical data, and marketing the
statistics commercially. Major League Baseball and the NBA work
with Elias, while the NBA and the NHL have their own in-house
system. There is little doubt the process by which these
statistics are generated will qualify for protection, under the
treaty's minimal requirement that the league demonstrate it has
made a "substantial investment in the collection, assembly,
verification, organization or presentation of the contents" of
database. The work-for-hire "media sheets," "box scores," and
other press handouts which report the statistics would be
considered database elements, and reporting of statistics from
these products would be subject to an entirely new type of
licensing and control by the leagues which is far stronger than
that which exists under copyright law. [See appendix].
The leagues have various methods of selling their "official"
branded statistics. There are also many competitors who build
databases from a variety of sources, including the published box
scores that appear in daily newspapers, and probably the books
and reports published by the leagues. The leagues do not
currently assert "ownership" in the statistics directly, even as
they try to prevent others from referring to the data as
"official" statistics, but they are trying to prevent real time
reporting of game statistics and situations over Internet or
paging technologies.
The NBA told us that it permits accredited journalists to
report scores from NBA games three times each quarter, and that
it considers the minute to minute reports a "misappropriation" of
its ability to sell performance rights for the event. The NFL
takes a similar position with respect to its games. STATS, Inc.
is a firm that provides real time scores and play-by-play
descriptors to a variety of online and wireless information
services. According to the NFL and the NBA, STATS, Inc. hires
people to watch television broadcasts of the games, and type the
play-by-play information into personal computers, which are
linked to the STATS, Inc. computer network services. An example
of this type of service that uses STATS, Inc. as a supplier of
statistics is Instant Baseball, available at
http://www.InstantSports.com/. Disputes over the real time
Internet broadcasts of game situations and scores could well end
up before the U.S. Supreme Court, as a test of the first
amendment. In the NBA case involving Motorola, STATS, Inc. and
America Online, the NFL and other leagues have filed amicus
briefs in support of the NBA position, while the New York Times
has filed a brief in support of Motorola, STATS, Inc. and America
Online.
About two weeks ago the NBA discovered HR 3531, a version of
the database protection proposal that was introduced in the U.S.
Congress last spring. The NBA is looking at HR 3531 to see if it
would provide a legislative remedy for their dispute with
Motorola, et. al. (Like the other leagues, the NBA wasn't aware
of the database treaty until last week.)
At present, none of the leagues currently prevent anyone
from publishing statistics after a game is over, because it is
assumed that the statistics (facts) are in the public domain,
once the broadcasts are over. But this would likely change if
the database treaty is enacted. One league official told me, "no
matter how appalled I am at this proposal personally, as a civil
libertarian, my client may have interests as a rightholder that
it will want to exercise." A lawyer for the NFL said that the
NFL might not want to do anything - he thought the free
dissemination of statistics brought its own benefits, in terms of
increased fan interest. But he also said, the treaty would allow
the NFL to "do quite a bit of stuff," in terms of new licensing
arrangements or other ventures, if it wanted to.
As a "sui generis" property right, the database proposal
does not incorporate the fair use principles from copyright that
reporters and value added publishers often take for granted. The
leagues would be able to require license to publish box scores or
other statistics in any media. One can imagine a world where the
leagues wouldn't require licensing of box scores to print based
periodicals like daily newspapers, but that a much more
controlled regimen would evolve on the Internet. The leagues
could require licensing of box scores and other statistics for
Internet publications, or linking to the leagues own web sites,
such as www.nba.com, www.nba.com, or www.nhl.com. The Internet
is, after all, a very easy place to locate and police violations
of intellectual property rights -- through a simple AltaVista
search. This would also likely lead to major changes in the
market for baseball (and other sports) cards, which typically
feature key statistics on the flip side of the card. The new
database extract rights would prohibit any unauthorized
extraction or reuse of data that had economic value to the
leagues (See discussion in Appendix).
WHAT CAN YOU DO?
The government is taking comments on the database treaty
through November 22, 1996. If you don't think the government
should rush into a new regulatory scheme for sports statistics,
let them know. You can email your comments to:
diploconf at uspto.gov.
If you want to know more about his proposal, check out
http://www.public-domain.org/database/database.html.
PS
Of course, this treaty deals with a lot more than sports
statistics. It will do the same thing for information on stock
prices that is generated by a stock exchange. It will radically
change the market for weather information. There is concern in
Europe over the control over train schedules. Private Schools
could use the new data extraction right to prevent unauthorized
publication of data about its student's test scores or post
graduate placement statistics (both generated from a database).
The treaty would radically change the rights to use information
from gene sequencing, or hospital cost benefit studies. It will
obviously do much much more.
Since I have tried to keep this note simple, a lot has been
left out. But consider this. The treaty, which was designed to
protect West Publishing's legal reporters, has been written so
broadly that it will define even the daily newspaper as a
"database" element. Since the new property right is additive to
to all rights claimed under copyright, every publisher will claim
the additional protection, by saying each issue of the newpaper
is a database element. (virtually all newspapers today are
archived in databases). The consequences of this are astounding,
since every fact and article in every newspaper will have the new
stronger form of protection, which will not include any public
fair use rights.
You might ask your member of Congress what the heck is going
on with the treaty, and see if they understand it.
James Love, Director
Consumer Project on Technology
202/387-8030; love at tap.org
* I will be out of the U.S. from November 11 to November 20,
attending a conference on the impact of international trade
agreements on intellectual property rights in New Delhi, India,
and will be hard to reach before the 21st.
Two law professors who have studied the treaty extensively are:
Professor Pamela Samuelson, University of California at Berkeley,
Voice (510)642-6775, pam at sims.berkeley.edu
Professor Peter Jaszi, American University, School of Law, Voice
(202) 885-2600, pjaszi at wcl.american.edu
APPENDIX
- -----------------------------------------------------------------
Extracts from James Love, "A Primer On The Proposed WIPO Treaty
On Database Extraction Rights That Will Be Considered In December
1996, October 29, 1996, http://www.essential.org/cpt/ip/cpt-
dbcom.html]
WHAT IS A DATABASE? WHAT ISN'T A DATABASE?
The treaty would protect "any database that represents a
substantial investment in the collection, assembly, verification,
organization or presentation of the contents of the database."
This term should be understood "to include collections of
literary, musical or audiovisual works or any other kind of
works, or collections of other materials such as texts, sounds,
images, numbers, facts, or data representing any other matter or
substance" and "may contain collections of expressions of
folklore." The "protection shall be granted to databases
irrespective of the form or medium in which they are embodied.
Protection extends to databases in both electronic and non-
electronic form" and "embraces all forms or media now known or
later developed. . . Protection shall be granted to databases
regardless of whether they are made available to the public. This
means that databases that are made generally available to the
public, commercially or otherwise, as well as databases that
remain within the exclusive possession and control of their
developers enjoy protection on the same footing."
WHAT ARE EXTRACTION AND UTILIZATION RIGHTS?
"The maker of a database eligible for protection under this
Treaty shall have the right to authorize or prohibit the
extraction or utilization of its contents." What is "extraction"?
Extraction is defined as, "the permanent or temporary transfer of
all or a substantial part of the contents of a database to
another medium by any means or in any form." "Extraction . . . is
a synonym for `copying' or `reproduction' . . . by `any means' or
`any form' that is now known or later developed."
"Utilization" is defined as "making available to the public all
or a substantial part of the contents of a database by any means,
including by the distribution of copies, by renting, or by on-
line or other forms of transmission," including the right to
control the use of the data "at a time individually chosen by
each member of the public."
WHAT IS A "SUBSTANTIAL PART" OF THE DATABASE?
The treaty sets out tests for determining if an extraction is
"substantial," and these tests are both highly anticompetitive,
and extremely broad in scope.
The "substantiality" of a portion of the database is assessed
against the "value of the database," and considers "qualitative
and quantitative aspects," noting that "neither aspect is more
important than the other . . . This assessment may also take into
account the diminution in market value that may result from the
use of the portion, including the added risk that the investment
in the database will not be recoverable. It may even include an
assessment of whether a new product using the portion could serve
as a commercial substitute for the original, diminishing the
market for the original."
Then the treaty adds that a "substantial part" means any portion
of the database, "including an accumulation of small portions . .
. In practice, repeated or systematic use of small portions of
the contents of a database may have the same effect as extraction
or utilization of a large, or substantial, part of the contents
of the database."
In the US implementing legislation, the only types of data use
that would not be regulated would be "insubstantial" parts,
"whose extraction, use or reuse does not diminish the value of
the database, conflict with a normal exploitation of the database
or adversely affect the actual or potential market for the
database." Under this language, a database owner could say that
it might in the future want to charge for each transmission of a
fact or an element of a database as part of its "normal
exploitation" of the database. With the Internet and digital cash
this claim is likely to be made. The public would not have "fair
use" rights, since fair use is only defined in matters involving
copyright.
FOR HOW LONG? 15 YEARS, 25 YEARS, OR FOREVER?
The Treaty would require a minimum term of protection (15 years
in the EU proposal, and 25 in the United States proposal) for the
database. But this is extended each time the database is revised
or enhanced. According to the draft treaty, "any substantial
change to the database, evaluated qualitatively or
quantitatively, including any substantial change resulting from
the accumulation of successive additions, deletions,
verifications, modifications in organization or presentation, or
other alterations, which constitute a new substantial investment,
shall qualify the database resulting from such investment for its
own term of protection."
The provision on revisions raises the specter that protection for
many databases will be perpetual. This could indeed be the case
if the original versions of the database are only "licensed" by
the vendor for a limited period of time, so that the only
available versions would be the new ones, which would have a new
term of protection. [Database vendors write these restricted use
licenses now].
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Study of Responsive Law, which is run by Ralph Nader. The
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