WIPO database treaty letter -- please sign

Gordon Irlam (gordoni@base.com)
Tue, 19 Nov 1996 17:31:08 -0800 (PST)

[Please feel free to forward this prior to Friday, 22nd November.]

The US government is working to create an international treaty that
creates a dangerous new form of intellectual property that applies to
databases. A database is defined as any non-trivial collection of
facts and information. Copyright law already applies to databases.
This international treaty seeks to create new laws that limit people's
ability to make use databases. In addition, none of the the fair use
provisions that apply in the case of copyright would apply to database
under this treaty.

I've drafted the following letter on the proposed database treaty.
I'll be sending it to the government on Thursday. Please drop me or
wipo-signature@base.com an email immediately if you are willing to
allow me to include your name on this letter. Please include a line
that looks like this:

Gordon Irlam, Software Engineer -- Mountain View, California

along with a comment if there is anything about you that is
distinguishing, and may be worth noting.

Since the database proposal is being proposed as an international
treaty by the executive branch, the usual congressional public review
processes have been bypassed. Unless this treaty is stopped,
irrespective of any independent assesment, congress will be required
to pass legislation that implements this treaty to fulfill
international obligations.

Currently the only opportunity for public comment on the proposed
treaty requires all comments be submitted by this Friday, November
22nd, 1996.

Comments against the proposed treaty have been, or are being filled
National Academy of Sciences
Institute of Medicine
Association of Research Libraries
American Library Association
Consumer Project on Technology
The ad hoc Law Professors group

For more information on the treaty visit: http://www.public-domain.org/


Mr. Keith Kupferschmid
US Patent and Trademark Office

Dear Mr. Kupferschmid,

We are responding to the request published in the Federal Register of
October 17, 1996 for Comments on the Chairman's Text of the WIPO
Diplomatic Conference on Certain Copyright and Neighboring Rights

These comments are directed at the Chairman's Text of the Basic
Proposal for the Substantive Provisions of the Treaty on Intellectual
Property in Respect of Databases. We do not seek to offer comments on
any of the other proposals on the table at this conference.

As software developers, we are at the forefront of the National
Information Infrastructure (NII) and the emerging Global Information
Infrastructure (GII), and as such hope we may be able to offer a
number of insights into some of the possible effects of this treaty on
the NII and GII.

We believe that the Internet represents the foundations of the GII,
and as such we look to the Internet to assess the effects of the
database treaty on the GII.

(1) The effects of the database treaty on the routing infrastructure

At the lowest level, the computers forming the Internet,
communicate through the exchange of packets of information. These
packets pass from one system to the next until they reach their
destination. Typically a packet needs to pass through around 20
different systems before it reaches its final destination.

Analogous to the postal system, each packet has an address printed
on it that identifies the final destination. These addresses are
effectively 9 digit numbers, and are known as IP addresses.
Unlike the postal system these addresses are not defined
geographically. Instead, a particular IP address might be located
anywhere in the world. Intermediate systems are aware of the
topology of the Internet, and know where the computer with a
particular IP address is located. Each intermediate system knows
who to forward a packet to next to ensure it reaches its final

Intermediate systems know where each IP address is located through
the exchange of what is termed routing information. The systems
exchange information identifying where each IP address is located.
Computers send messages to connected systems to saying: "I am
here", and the connected systems then collect up and send on this
information to other systems on the Internet. This information is
sent in the form of routing tables listing a set of IP addresses,
and for each IP address list it's current location.

These routing tables fall under the domain of the proposed
database treaty. As such a network provider would be able to
claim ownership of the routing table constructed from the routing
information provided by their subscribers. Doing this would allow
the network provider to prevent, or control the way in which
others can make use of such routing information. Apart from the
network provider, there is no other practical method of obtaining
this routing information. Such routing information is essential
for network connectivity, and as such could be used as a price
lever by large network connectivity providers (PSI, UUNet, MCI,
Sprint) to force smaller providers out of the market place. An
example end user license for the use of such routing tables might
for instance prohibit the exchange of the information contained in
the routing table with anyone other than a customer of one of the
large network providers.

(2) Effects of the database treaty on the domain name system

Users on the Internet aren't required to know the IP address of
hosts they are talking to. Instead they refer to computers
through textual names, such as "www.uspto.gov". The Domain Name
System is the component of the Internet responsible for
translating these textual host names into IP addresses to which
packets can then be sent.

The domain name system is administered by Network Solutions
Incorporated under a time limited contract with the NSF. Parties
contact Network Solutions telling them the names of new machines,
and Network Solutions publishes a database on the Internet that in
effect contains the IP address of each machine.

The domain name system meets the definition of a database given as
specified by the treaty. No practical way exists to obtain the
information contained in this database other than either directly
or indirectly through the data supplied by Network Solutions.

Since it was drafted prior to the treaty it isn't clear from the
Network Solutions's contract with the NSF, whether Network
Solutions would be able to claim ownership of the DNS database, or
if the database belongs to the NSF. It seems plausible that
Network Solutions would be able to claim ownership. We are
however unable to make this claim with certainty.

The ability to claim ownership of databases such as the DNS
database could have a potentially severe chilling effect on the
Internet. Network Solutions position as sole provider of the DNS
database would enable them to charge a high price for access to
it. This information contained in this database is fundamental to
a user's ability to navigate around the Internet, and essentially
Network Solutions would end up owning the Internet.

It seems vital to us that in evaluating the effects of this
treaty, possible serious real world ramifications such as this,
must be very carefully analyzed and understood.

(3) Effects of the database treaty on Internet search services

There are a number of Internet search services that users make
use of to find information on the Internet. Currently, the most
popular search service is called Alta Vista, and was developed by

Information on the Internet is contained in individually owned and
managed repositories called web sites. Each web site contains
numerous documents.

Alta Vista works by going to each web site on the Internet,
retrieving the contents, and from this constructing an index of
the information contained on the web site. To perform a search,
the user types in a few key words. Alta Vista is then able to use
its indices to return to the user a list of all web sites
containing the specified words. Alta Vista does not return the
contents of the indexed web sites, but merely tells the user the
name of the relevant web sites.

The generation of an index for a web site currently does not fall
under the scope of the Copyright Act. Under the proposed database
treaty, each website on the Internet fully meets the definition of
a database. And, under this treaty the ability to construct an
index of a web site, which of necessity involves retrieving the
information from the web site would appear to fall under the
"right to authorize or prohibit the extraction" terms of the
proposed treaty.

It is impractical for Alta Vista to gain permission to index every
web site on the net, and as a result the only options would be for
search services such as Alta Vista to either flaunt the law,
hoping that their infringement won't be prosecuted, or to cease
providing this valuable service to the users of the Internet.

We hope these comments help highlight some of the issues raised by the
proposed database treaty. We believe the treaty has been developed in
a theoretical vacuum and that many practical consequences of this
treaty have not been carefully considered.

If recent US court decisions make it necessary to make changes in
database protection law, we believe this should be achieved through
carefully considered legislative changes to the US Copyright Act. No
form of Sui Generis protection is desireable, and especially not one
achieved via an international treaty. We feel it will only be
appropriate to consider an international treaty defining the scope of
protection for databases if and when an acceptable set of changes have
first been made to the US Copyright Act.

We feel that the WIPO database treaty is ill-considered and
inappropriate. We would like to see the US work to have this treaty
removed from further consideration at the WIPO conference.

Thank you for considering our opinions.


Gordon Irlam, Software Engineer -- Mountain View, California
Michael Tiemann, Director, Cygnus Support -- California
<other names to be added>

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