D R A F T

Scientific community concerned recent initiatives will widen rather than close digital divide

8 March 2001 The President of the International Council for Science (ICSU), Hiroyuki Yoshikawa, has expressed deep concern at the ‘worrisome trend’ towards the development of special limitations, restrictions, negotiated agreements and ‘cost recovery’ policies which are making it more difficult for some scientists to gain access to data and information than others. Most threatened by this trend are the scientific communities in developng countries and countries in transition.

In his introductory speech to the Second International Conference on Electronic Publishing in Science held at UNESCO headquarters in Paris (France) last month (see WCS Newsletter, 27 February 2001) Professor Yoshikawa recalled ICSU’s attachment to ‘the protection and promotion of full and open access to scientific data and information for research and education’. He stated that ICSU had been drawing the attention of the World Intellectual Property Organization (WIPO), World Meteorological Organization (WMO), the Intergovernmental Oceanographic Commission of UNESCO, and the European Union to the serious problem posed by recent initiatives.

‘ICSU has had to express its great concern regarding the special agreement between Science and Celera’ he declared, ‘which has led to an apparent break with the widely endorsed international consensus on the release of all genetic data related to a published article. While this has led to some very exciting new information being made available on genetic sequencing, ICSU – and the ICSU family – remains deeply concerned about the possible consequences for the principle of full and open access to data for research and education in future’. ICSU has proposed a multi-stakeholder review.

Professor Yoshikawa cited another ‘worrisome’ example, that of the European Union Directive on the Legal Protection of Databases (96/9/EC). It is ICSU and its’s Committee on Data for Science and Technology (CODATA) which isare spearheading an awareness-building campaign of the threat to equitable access to data and information posed by the Directive in its current form.

Ferris Webster, Chair of the ICSU/CODATA ad-hoc Group on Data and Information, was at the Conference. He recalls how, ‘when the Directive was originally adopted by the Council of the European Communities and the European Parliament back in 1996, it took scientists and scientific groups all around the world by surprise. ’In theory, Member States have been implementing the Directive since 1 January 1998’, notes Webster, ‘but in a manner that varies from state to state. Some have if the Directive were to be fully implemented in its current form and if individual European countries passed conforming laws without traditional fair-use protection, and the way science is now practised could be seriously harmed.’

Of particular concern is the article in the Directive dealing with fair use of databases for research and education. CODATA ICSU would like to see the fair-use provisions made mandatory rather than optional, re-utilization of data allowed, the requirement to indicate the source of all data removed and the fair-use concept extended to include research carried out to by commercial endsentities.

CODATA ICSU is pinning its hopes on a revision of the controversial Directive likely scheduled to take place in 2001 on the basis of information supplied by Member States. Upon completion of the revision in early 2002, the European Commission will may submit a report to the European Parliament proposing adjustments to the Directive in line with developments in the area of databases. This would be the occasion for the scientific community to make its voice heard.

The implications of the Directive from a science and technology perspective are that it creates an unprecedented, absolute exclusive property right in the contents of databases that contradicts the underlying premise of classical intellectual property law which says no-one should own factual data as such; it relies on a broad and inclusive definition of databases that potentially covers almost everything on the Internet; it conveys an exclusive property right to the content of all databases even if these fail to qualify for copyright protection. This right lasts for an initial period of 15 years and can be extended indefinitely whenever updates or substantial investments are added; it has no requirement for public-interest exceptions (individual Member States have the discretion to adopt some limited exceptions when implementing the Directive); it provides for no mandatory legal licensesprovisions that would require sole source providers to make data available on reasonable terms and conditions; it contains a reciprocity clause that denies equal protection under the law in Europe to foreign data vendors, unless their respective nations have adopted similar laws for protecting databases; and it establishes the potential of strong penalties for infringement.

The Directive clearly swims against the tide of the World Conference on Science, which endorsed the right of ‘all countries [to] protect intellectual property rights, while recognizing that access to data and information is essential for scientific progress.’ (para.65, Science Agenda)

‘Unlike copyright’, Webster warns, ‘the Directive may extend to the protection of facts. Imagine, a A database would might no longer need to have original selection, coordination or arrangement to be protected. Facts themselves would be protected from unauthorized use. Even though the Directive would permit fair use of data for research and education as an exception, the exception is narrowly drawn and not all Member States have enacted a fair-use provision into their domestic law. The definition of terms in the Directive is so general that it is at the moment nearly impossible to judge how the Directive will be applied.’

Source: ICSU (secretariat@icsu.org) / CODATA, Ferris Webster Ferris@udel.edu