Crisis over copyrights

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Sui generis surfaced again in a subsequent white paper and in legislation that stalled in the House and the Senate in 1995 and again earlier this year. The concept has drawn strong opposition from libraries, online services, telecommunications companies, citizens' groups, and law professors.

The information industry and Commissioner Lehman remain undaunted in the face of this intensifying opposition. "Lehman made some promises to important industry people that he would 'get' [sui generis] for them, and he is determined," said Michael Davis, a law professor who also sits on the board of the Union for the Public Domain, a citizens' group that opposes measures to curtail public access to information.

That determination may be inspired at least in part by forces beyond his control. As federal legislators debated and tabled proposals in Congress over the last several months, their European counterparts were working at a fast clip to forge laws of their own, legislation that the Information Industry Association fear could potentially supersede any tight U.S. regulations.

European Union member states are required to draft laws that implement sui generis rights by the end of 1997. The EU directive only offers a copyright term of 15 years and makes explicit concessions for fair use, but it doesn't protect databases held by non-EU companies, such as those based in the United States.

Pamela Samuelson, professor of law, University of California at Berkeley

"The fear is that EU countries will come in and suck down U.S. databases with a straw," said Pamela Samuelson, a professor of law at the University of California at Berkeley and the author of many papers on digital copyright.

"By getting the first legislation, by getting the first treaties written, [the EU] has put a marker in the sand, she said. "Instead of having to make a case for why such extraordinary measures are necessary, now anyone who objects will have to make a case for anything other than this outrageous proposal."

Still, Samuelson argues, the sui generis right is not needed for a fair system of digital copyrights. "Database providers are already protected on many levels, by copyright laws, by contract law, and by reputation," she said.

"We may need a little more protection, but that remains to be seen." 

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