November 22, 1996

Bruce Lehman
Commissioner of Patents and Trademarks
Box 4
Patent and Trademark Office
Washington, D.C. 20231

Commissioner Lehman:

We are writing to express our concern about the draft Treaty on Databases that will be discussed at the World Intellectual Property Organization (WIPO) negotiations in December. The Association for Computing (ACM) recognizes the need to protect investments made in large data collections. Regrettably, however, the proposed treaty fails to recognize the legitimate needs of academic, professional, scientific, and ordinary users of data. Therefore, we believe that support for the treaty in its current form is generally not in the interests of the computing profession or of the general public.

ACM has developed considerable expertise in the copyright issues associated with the creation of electronic databases. The ACM also publishes many journals, some of which include research results derived from data collection. This data is widely disseminated in the research community. ACM members are both producers and users of these data collections. Under the proposed treaty language, the extraction of substantial portions of the data compilations will be prohibited. The owner of the data set will have the authority to determine which users may access the data. This limitation on the use of data is contrary to the traditional scientific research model. In the U.S. data collections are routinely reused and revised in the course of scientific and academic research without royalties being exchanged. The treaty language does not include the traditional "fair use" exemptions that would permit researchers to verify others' results, educators to demonstrate models in classrooms, make use of government databases, and other traditionally protected uses. Such free use of data is indispensable to effective and accurate research. The treaty also includes an overly broad definition of what constitutes a database. This, too, could have a chilling effect on academic research and publication.

The absence of "fair use" exemptions also impacts citizen/taxpayers, who currently have the right to use data from data bases created by their government and by organizations funded by the government, no matter if someone else has also published the data. One example is all names and numbers registered with NSF's contractors Network Solutions and ISI pertaining to the Internet. The public can access such data for any legal reasons, including operating Internet routers and directory services. Naturally this principle extends to all sorts of financial and other data which major publishers resell all the time.

The ACM has a particular interest in the development of intellectual property policies that serve a broad mission. We believe that such policies should ensure the continued vibrancy of not-for-profit publishers, students, researchers, and the general public, even as they seek to protect commercial investments. A sensible treaty proposal should promote the "Progress of Science and the Useful Arts" by allowing exemptions for public-good uses in libraries, universities and laboratories. It should not establish perpetual protection for data while eliminating "fair use" upon which the research community is heavily dependent.

We urge you to reevaluate the U.S. position regarding the treaty on the "Sui Generis Protection of Databases." We believe that there are alternative approaches that may better serve the interests of users of new digital technologies. We would be very pleased to work with you on a study of these issues.

We would look forward to working with you on this effort.

Sincerely yours,

Dr. Barbara Simons,
Chair, USACM