Date: Tue, 12 Nov 1996 14:13:08 -0500

From: David Dailey <David.P.Dailey@williams.edu>

To: Multiple recipients of list <cni-copyright@cni.org>

Subject: Re: Sports Statistics to Be Regulated Under WIPO Treaty (fwd)

In-Reply-To: a message of Sun, 10 Nov 1996 12:10:19 EST


On Sun, 10 Nov 1996, James Love (love@tap.org ) wrote:

>

> 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."

A piece of current U.S. Code, Title Section 103 b seems relevant: "The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material. "

Hence, in the case of a database of public domain facts, the preexisting material (facts) cannot be protected under current law (as interpreted by the Supreme Count in Feist).

So it seems like the treaty would require the US Congress to rewrite 103b, in a way inconsistent with Feist. Would this not upset the system of checks and balances a bit, since both the legislature and the judiciary seem to concur here?

Question: what if the legislature did indeed ratify WIPO and tacked on a few clauses to Title 17, but managed to forget to rewrite 103b in the process, how are courts likely to deal with the resulting statutory inconsistency?

Another question: Might not a casual rewrite of 103b have unanticipated side-effects? In particular, how to rewrite it so that all manner of upheaval to existing commerce in the licensing of derivative work does not occur?

Better yet, why not fight WIPO with WIPO and take the law into one's own hands? Plow through the US Codes and find all inconsistencies between WIPO and existing statutes. Then make a database of them. After WIPO is ratified, but before the legislature has a chance to mop up all the loose ends, disseminate extractions from that database so broadly that independent discovery would be impossible. Then when Congress does get around to cleaning up the statutues, forbid them from doing so since they would inevitably be infringing on the database of inconsistencies.

While at it (borrowing a bit from the thread on copyright of legal briefs), write a small piece of code which generates all humanly comprehensible reworkings of each piece of inconsistent statute, (probably only 1068 ways to redo 103b and less than 20,000 ways to do 201, etc.) thereby owning all future expressions of the new statutes.

Probably best to register this piece of work early, though.

David Dailey (ddailey@williams.edu)