I am not sure I would agree with Mr. Bing's assessment that the common law supports a crown copyright -- just because England is a common law country does not mean that the Crown Copyright qualifies as a common law doctrine. Indeed, it was the Crown standing outside the copyright law which imposed these claims -- and I would argue in opposition to common law.
> The only European country where a government traditionally excercise
> Crown Copyright is the UK. They have handed it down to Canada,
> Australia, and - to some extent - the USA, where at least some state
> government excercise such a principle. This is part of Common Law,
> ailien to the law of Continental Europe or the Nordic countries,
> though the exception based on the Berne convention for official
> documents is implemented quite differently in the different
> jurisdictions.
Perhaps the English particpants on the list could provide more historic information. But, the US Constitution specifically rejected many of of the perogatives of the Crown -- knighthood being one. Nor would I accept that the purported claims of a few US States to copyright their cases and statutes is in any way related to the Crown Copyright, especially since most of those states making these claims are not amongst the original colonies. Actually these states made these assertions, which have been challenged by none other that West, I am told. But, after all, my debate was with a proponent from Canada, a country actually with a royalist tradition.
As far as the civil law/ common law distinction, I would be interested to know what is the position of the civil law countries, in particular France and Germany, on the ability to copyright court opinons apart from data base protection. It is my sense that these governments are much more willing to exercise control over their own information. I am also struck from the lack of availability of the EEC decisions on the Internet -- are they there? I recall two years ago that it was somewhat difficult to obtain the Magill decision, and I am struck by the abstracts of opinions related to the sale of goods treaty on the UN site, but the curious omission of the full text opinions. Why is that, Mr. Bing? My point is that there is US law starts from a fundamentally different position on the issues of access to public information -- see also US FOIA laws.
In addition, I wish to reply to another comment of Mr. Bing's about what may or may not be permited under the database protection treaties/legislation.
Mr. Bing takes what I believe is a pollyanish position on the impact of the database protection. He stated:
> It is true that extraction is protected under the directive, but only
> of "substantial parts". What constitute a "substantial part" is still
> to be decided by case law, but a rule of the thumb would be that such
> a part itself would have to attract sui generis protection as a data
> base, considered by itself. Therefore extraction of single cases
> certainly would not be prohibited, but extraction of all cases would
> be prohibited, protection - according to the philosophy of the
> directive - the investment of the original compiler. This reveals the
> close relationship between the directive and unfair competition law -
> it is "piggybacking" on the efforts of others that the sui generis
> right mainly addresses.
Basically, what Bing is suggesting is that this could be litigated in the courts, and in this country, the litigation would take place in a precedential vacuum. Just so Bing understands, when Fish and Richardson recently files a CD-ROM brief with the Federal Circuit, the law firm included a dozen or so West opinions, and, had to obtain a license from West, which prohibited providing the CD-ROM with cases to any other than the court!!
First, a database protection for West would reintroduce all the evils. To be safe, a competitor would have to disclose plans to West about what is is going to do.
West would be under no obligation to respond. Moreover, West would be the arbitrer of what was and was not published.
Under US law, if the competitor wishes to challenge West database protection claims, it would have to first meet jurisdictional challenges of case or controversy as is required in declaratory judgment challenges to patents, trademarks, and copryights. West opposed Matthew Bender's and HyperLaw's challenges for over 3 years on this ground, and on this issue alone. Matthew Bender has filed a claims for legal fees in excess of 1.2 million dollars. HyperLaw will file a similar claim. And, there are still appeals to come. In the real practical world, the data base protection shemes will provide an enormous advantage to vested information providers. So, I guess Bing is suggesting starting this all over again, and redoing the litigation every time there is a new product or something changes. I suggest that all database providers asserting protection be taxed a 10% of revenues to create a litigation fund to fund challengers in standing disputes to challenge database protection claims.
Second, there are questions as to what could be raised in challenging the protection -- investment of the provider -- can West include in this its lobbying costs which permits it to maintain is position due to goveenment acquiensce if not collusion. Would other fair use issues come into play. Who would have the burden of proof?
Third, at least in the US, compulsory licensing of essential information facilities is more of a intellectual concept than a reality. At least in some European countries there is homage paid to this concept. But, in the US, the official position of the US Deparmtent of Justice is against compulsory licensing, and compulsory licensing provisions were removed from the database protection bill introduced last year in the US.
Even with compulsory licensing, there are pitfalls. Anything subject to a license would first not be able to be placed on public sites on the Internet.
If the compulsory licenses are developed and approved by goverment lawyers/bureaucrats one will see illusory licenses like the one "negotiated" by DOJ in connection with the merger of West and Thomson. Its most significant defect was that is was a license to star-paginate blank pages since DOJ just decided to ignore West claims to the text of the opinions. That is what the latest decision is all about -- because, now one can actually obtain the text of the court opinions [in this regard, I note that DOJ declined to file an amicus brief on the HyperLaw's text claim, although it had done so for th star-pagination claim.]
I guess the real issue is what great social purpose is served by extending database protection or copyright protection to the law, whether statutory or in the form of case law, and the converse is what social harm is caused?
Alan
PS
A coalition of supporters of Database Protection -The Coalition
Against Database Piracy was recently reported to include the American
Medical Assocition along with Thomson, McGraw Hill, the trade
organization Information Industries Association which is dominated
by those two, Skinder-Straus Associates, and Warren Publishing Inc.
AMA representative are now denying that the organization had approved
partipation in this group. It seems in actuality that still, the
only information companies expressing any enthusiasm for this
database protection are Thomson and McGraw HIll
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: :: Alan D. Sugarman Federal Appeals on Disc tm CD-ROM :: :: President Opinions of US Courts of Appeals :: :: 1993 to Date - All Circuits :: :: HyperLaw, Inc. Registered Trademark :: :: P.O. Box 1176 DO NOT SHORT CIRCUIT YOUR CLIENTS :: :: New York, NY 10023 :: :: sugarman[_at_]hyperlaw.com 212-787-2812 212-496-4138(fax) :: :: :: :: http://www.hyperlaw.com :: :: :: :: /// /// /// [R] :: :: /// /// /// :: :: /// /// /// :: :: //////////////// /// :: :: //////////////// /// :: :: /// /// /// :: :: /// /// /////////// :: :: /// /// /////////// :: :: :: :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::Received on Mon Jun 09 1997 - 19:41:56 GMT
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