Re: Database Protection -- Information Industry Perspective

On 11/11/96, John D. Kirkpatrick wrote:
>
> re creation of database using other peoples databases.
>
> How close is "closely resembles"? Is there a percentage?

No percentage - it is the quality/quantity factor of fair use - this 4 factor test (purpose, nature of use, amount used, and market effect) is generally applied with emphasis on each factor depending on the facts and circumstances of each case. Hate to throw you into the grey morass of that doctrine, but you would really need to apply this pretty carefully because it seems that you, as the creator of an intermediate product, may need to use it as a defense to the owners of the original data, and may have to over come it when consumers misappropriate your data.

> Do I need to be concerned if I am distributing a database that doesn't
> contain expression on a page?

At present, that depends entirely on whether you want to protect the database. Creative expression is necessary to obtain copyrights and thereby have the exclusive right to use, but the amount of creativity is pretty low. (See Feist) I don't believe that numbers on a table, no matter how craftily devised will meet the threshold requirement. You should probably pay attention to the sports cases which I believe are having some success in temporaly limiting sports statistics.

>> What is MY best form of protection against being copied? Licensing?

If there is time value in your data (i.e. it is revised monthly) then tradesecret may be your best protection - that is, don't inform the reader of the methods used to generate that data. Clearly, this will not work in some cases where you need to cite the source for credibility reasons.

Licensing is great for two reasons - first, it strengthens your argument that you have met the threshold creative requirment because others are respecting the information as your copyrighted work. Second, it minimizes enforcement action by setting a market value for the data and proactively eliminates your primary infringers.

The best protection ultimately could be the results of HR 3531, the Database Investment and Intellectual Property Antipiracy Act of 1996, which creates a new form of IP for databases. But that doesn't help you much now.

Brian E. Lewis
Associate General Counsel
Wizards of the Coast, Inc.
<lawman[_at_]wizards.com> Received on Wed Nov 13 1996 - 17:52:11 GMT