The American Association for the Advancement
of Science (AAAS) is the world's largest general scientific society
and forms a federation of 235 science, engineering, and health professional
associations dedicated to improving the effectiveness of science in the
promotion of human welfare. AAAS and its affiliate societies are
concerned about national and international efforts in 1996 to create a
new, sui generis form of intellectual property protection for databases
independent of current copyright law. These are special intellectual
property laws that deviate from the traditional copyright model and are
intended to provide protection for a specific class of materials.
Proposals in the U.S. Congress and at the World Intellectual Property Organization
would impose an exclusive and virtually perpetual intellectual property
right on databases that could severely restrict access for scientific research
and education. This concerns the scientific community because much
of the knowledge produced by scientists is collected and distributed through
databases, and using these compilations adds to the efficiency of science
and helps make its discoveries more rapidly available to society.
Proponents of these sui generis intellectual property proposals
have yet to demonstrate a compelling need for such extraordinary protection
that would threaten the advancement of science and the economic and social
progress based on it. In fact, the marked growth in electronic databases
over the past several years belies the contention that incentives to produce
databases are declining. This Statement explains why such sui
generis proposals—or any proposals that would impede the full and open
exchange of scientific data—are inimical to scientific progress and presents
a set of principles for evaluating intellectual property proposals related
to scientific databases.
1. SCIENCE, SOCIETY, AND INTELLECTUAL PROPERTY
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Science provides the basic knowledge for major technological advances,
contributes to productivity, and informs public policy.
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Science represents an investment in organized knowledge for the benefit
of society and the economy.
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Scientists do support intellectual property protection of databases, but
rely primarily on constitutionally derived copyright law that balances
public and private interests.
Scientific knowledge underlies technologies in such fields as medicine,
engineering, and economics, and is integral to many policy decisions made
by all three branches of the government. In addition, science is
recognized as a critical public investment in our future, a resource with
extraordinary dividends in social and economic advances.
The Framers of the U.S. Constitution understood the importance of the
work of the mind to the success of the nation. Accordingly, the Constitution
established the principle of balancing the rights of intellectual property
owners with the public’s right to knowledge. This principle is embodied
in our Constitution (Article 1) in order to "promote the Progress of Science
and useful Arts by securing for limited times to authors and inventors
the exclusive rights to their respective writings and discoveries."
The means chosen to safeguard both proprietary and public interests with
respect to information is copyright. While copyright owners enjoy
specific exclusive rights under the modern Copyright Act, the Constitution
restricts such rights to "limited times." Moreover, those rights
are not absolute. The statute also affords entrepreneurs, educators,
scientists and engineers, journalists, students, scholars, library users,
and the general public the opportunity to use copyrighted works under certain
terms and conditions without the copyright owner’s express authority.
This critical balance in the constitutionally grounded Copyright Act has
served science and the public interest very well, and U.S. leadership in
many scientific fields and industrial sectors has flourished in this environment.
2. DATABASES
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Shared databases are essential to large, complex scientific investigations
such as the Human Genome Project, global climate modeling, and AIDS research.
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Scientific use of databases requires access to all applicable data to seek
patterns, unusual features, and possible data errors.
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Scientists obtain databases by creating, purchasing, exchanging them, or
through donations.
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Pricing of scientific databases should balance affordable access by scientists
with the economic incentives needed to create and disseminate scientifically
important databases.
Databases are also integral to the international use of the Internet as
a major point of access to research data produced by scientists, where
they are finding new applications in research ranging from the Human Genome
Project, to global climate studies, to AIDS research. Advocates for
sui generis protection have failed to demonstrate that databases
generated in the commercial sector would not be adequately protected by
the combination of legal and technological protections now available or
that a sui generis approach is the most appropriate means to provide
additional protection.
There is an important distinction among the uses of databases.
A personal address book is a database, as is a dictionary or a telephone
book. These databases usually contain many individual items, but
only one or a few of them are needed for each specific use. Databases
used in science are very different in that the totality of the database
is usually examined and analyzed. In fact, scientists often study
several similar or related databases for a single investigation.
These related databases typically come from different sources. For
example, it is estimated that over 100,000 base pairs are uploaded into
Internet-accessible genome databases every day from all over the world.
These raw data are critical to human genome mapping and sequencing, and
access to them would be adversely affected if high cost and inordinate
protection inhibited access to these data. Advances in the study
of the human genome depend on fully and openly accessible databases.
To understand the disastrous effect of overpricing and overprotection of
databases, we need only review the dismal history of the Landsat satellite
data as recounted in the 1997 report, Bits
of Power: Issues in Global Access to Scientific Data by the National
Research Council. The original cost of an image was approximately
$400 and research flourished. The government then privatized the
distribution rights. The subsequent ten-fold increase in fees for
the images from the Landsat satellite essentially stopped an entire area
of academic and practical research. A lower price was reinstituted
for government users but not for academic or independent researchers.
Thus, data once readily accessible and affordable for educational and scientific
purposes were effectively lost to most scientists.
The scientific community endorses the notion that "full and open access"
means making publicly-generated data available without charge or for no
more than the cost of reproduction and dissemination. Data produced
or distributed by non-public sources and made available to the public should
continue to be accessible for research and education purposes on fair and
reasonable terms that recognize the public interest served by such uses.
3. FULL AND OPEN EXCHANGE OF SCIENCE
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In all areas of scientific endeavor, full and open communication is critical
to the achievement of research and educational excellence.
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Without affordable data sharing, the peer review and experimental replication
science needs for quality control would be seriously curtailed.
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Without affordable data sharing, proper education in research methods would
be hampered.
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Without affordable data sharing, scientists would be restricted in their
ability to pursue large-scale, interdisciplinary, collaborative efforts
needed in many of today's complex research programs.
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Without affordable data sharing, public access to scientific data would
be restricted.
3.1. Research Practices
The hallmark of every scientific investigation is the full and open communication
of all data among those engaged in the research. The earlier investigative
model of the solo scientist has been replaced by the increasing involvement
of scientists in large-scale, interdisciplinary, and collaborative arrangements,
where data passes between groups of scientists and the knowledge produced
is collectively generated and shared. For example, complex studies
of the global environment, population trends, and the human genome project
require international collaboration. In such arrangements, the sharing
of data and results is more than a courtesy among colleagues; it is the
path to the most productive work. Advances in information technology
include networked computers linked to electronic databases worldwide.
This technology is complemented by government policies that have fostered
closer ties among researchers in academic institutions, federal laboratories,
and industry. This powerful combination of technology and policy
has increased opportunities for international ventures among scientists,
which in turn produce larger and more comprehensive databases. Access
to data contained in these databases makes new experiments possible, and
allows scientists to draw from and extend the work of others.
3.2. Peer Review and Quality Control in Science
A truly fundamental precept of science is that no theory or finding is
accepted until a consensus has been reached among scientists who have independently
evaluated the earlier work. Achieving such a consensus usually involves
access by others to data from the original scientific team or specific
sets of data extracted from commercial or public domain databases and arranged
and analyzed in new ways. Such arrangements will yield useful insights
and interpretations. Regardless of the data source, this process
is contingent upon the original scientist or team providing reasonable
access to its data by those carrying out the replication or building on
the earlier work. It would be far too costly for researchers to generate
the data anew. This community-wide and ubiquitous process of independent
evaluation is built upon full and open exchange of data—regardless of source—for
research purposes.
3.3. Education
To give students the knowledge and skills needed in the next century, educators
must have access to current and cutting-edge information across all scientific
disciplines. In addition, education in scientific method largely
depends on repeating the analyses of prior data, especially data from experiments
that are non-repeatable or too expensive to repeat for instructional purposes.
One goal of science education in the university is to teach students how
to find and evaluate data. In graduate and post-doctoral settings,
students are expected to organize and analyze data in novel and innovative
ways and conduct original research of their own. To conduct their
studies, they often rely on databases available through their institutions
or from public or private sources. Placing undue restrictions on
access to these databases would impair well-established models of U.S.
science education.
4. INTELLECTUAL PROPERTY PROTECTIONS AND DATABASES
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Current intellectual property protections properly balance the needs of
database providers and the public, while sui generis database proposals
threaten to alter that balance; in the absence of demonstrated need, the
United States should not abandon what have been effective balancing mechanisms.
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The United States should not adopt intellectual property policies inimical
to science and the public interest.
The Framers of the Constitution's "Copyright Clause" were motivated by
a fundamental commitment to the public welfare that could be served by
a robust intellectual exchange of ideas and information. As Justice
Sandra Day O'Connor wrote in Feist
Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340
(1991):
The primary objective of copyright is not to reward the labor of authors,
but "[t]o promote the Progress of Science and useful Arts." To this
end, copyright assures authors the right to their original expression,
but encourages others to build freely upon the ideas and information conveyed
by a work. This principle, known as the "idea/expression" or "fact/expression"
dichotomy, applies to all works of authorship. As applied to a factual
compilation, assuming the absence of original written expression, only
the compiler's selection and arrangement may be protected; the raw facts
may be copied at will. This result is neither unfair nor unfortunate.
It is the means by which copyright advances the progress of science and
art (citations omitted).
Existing mechanisms provide significant protection for the value added
by database producers. In addition to copyright law, contracts and
licensing also offer means for protecting proprietary interests, and technological
measures such as encryption can help to thwart would-be free-riders.
Nevertheless, some information proprietors have claimed that these mechanisms
are not sufficient to protect their investment. This is a matter
of concern to the scientific community. However, the burden is on
those who advocate a new sui generis regime to not only demonstrate
a compelling need for it, but also to ensure that their proposals would
preserve the traditional balance for protecting "Progress of Science and
useful Arts." It is that balance that has catapulted America's culture
and economy into the vanguard of the Information Age. Impeding the
flow of scientific data would serve neither private interests nor the public
good. Everyone loses if scientists are prevented from completing
promising research because their access to critical data is denied or too
expensive. Intellectual property law must never become a disincentive
to the full and open exchange of ideas and information in science.
* Adopted by the Board of Directors of
the American Association for the Advancement of Science on October 31,
1997.
