Unfair competition and the Science Commons protocol

December 18, 2007 in Legal, PDDL

The issue of unfair competition has already come up on one of the discuss lists. The new Science Commons Protocol for Implementing Open Access Data mentions this area of law.

4.1 Converge on the public domain by waiving all rights based on intellectual property


Thus, to facilitate data integration and open access data sharing, any implementation of this protocol MUST waive all rights necessary for data extraction and re-use (including copyright, sui generis database rights, claims of unfair competition, implied contracts, and other legal rights), and MUST NOT apply any obligations on the user of the data or database such as “copyleft” or “share alike”, or even the legal requirement to provide attribution. Any implementation SHOULD define a non-legally binding set of citation norms in clear, lay-readable language.

The Public Domain Dedication & Licence doesn’t mention unfair competition, and so the question has come up whether it is compliant. I’ve gone ahead and started this part of the Legal FAQ to address this issue and solicit your feedback. The response is after the jump.

The Science Commons Protocol mentions “unfair competition” and I don’t see this in the PDDL. What is it and how is it addressed in the PDDL?

The short answer to the unfair competition issue is that after some initial research it looks like that most (if not all) unfair competition claims would be negated by using this document and making the data publicly available.

“Unfair competition” in US law (presumably what was intended by Science Commons) is a REALLY broad term for quite a few distinctly different rights of action, including:

  • Trade secrets;
  • Publicity rights;
  • Trade mark claims;
  • Passing off (which is a lot like trade mark);
  • Deceptive advertising;
  • Other kinds of unfair methods of competition

As you can imagine, the areas outlined above have a variety of different elements. One common theme that could be said about many of these areas is that they involve using some aspect of a business without permission. And permission to use the data is, after all, what is granted in the PDDL.

Take trade secrets for example. The law protects secret information. If you use the Public Domain Dedication & Licence and make your data available via the internet, it can’t be a secret any more because you’ve let everyone see it. So there isn’t a need to address this in the licence.

We admit that this is a tricky area. Currently, lots of data providers use all sorts of varieties of unfair competition to protect their data, and this area of law is not internationally harmonised. If you think that there is an example or cause of action that needs to be addressed to either meet the Protocol or to facilitate data sharing, let us know.

As a goal, it is important to make sure that the producer of the data is not worse off in relation to it than others — essentially that the producer is in the same position of anyone finding public domain data. This means that they should be able to create trade marks and protect those marks, either through registration or through claims such as passing off (included in the US model of unfair competition). So when looking at all of the rights, we should make sure that we keep this in mind.

Looking forward to your thoughts.




One response to “Unfair competition and the Science Commons protocol”

  1. […] that the legal text was drafted with US law in mind, particularly the law of unfair competition (additional thoughts on unfair competition), and so the language was not meant to cover database rights. If so, the coverage of database […]