August 30, 1996 - Draft Treaty on Intellectual Property

Commissioner of Patents and Trademarks
Box 4
Patent and Trademark Office
Washington, D.C. 20231

Attention: Ms. Carmen Guzman Lowrey, Associate Commissioner for Governmental and International Affairs

The American Society for Microbiology (ASM) wishes to express great concern that the August 30, 1996 Draft Treaty on Intellectual Property in Respect to Databases is potentially a threat to access and use of information that is essential for our nation's scientific community to function at full capacity. The ASM is the largest single life science society in the world, with over 43,000 members, including scientists and science administrators in academic, industrial and government institutions, working in molecular biology and genetics as well as agricultural, environmental and medical microbiology.

The ASM is of the firm opinion that a Treaty for the protection of databases must not only "ensure adequate incentives to invest in creating databases" and "safeguard databases against destruction of their commercial value," but must also ensure researchers and teachers "fair use" of databases, so there is full and open exchange of information as called for in our current U.S. Copyright Act.

The continued development of important new areas of research, such as genomic studies and bioinformatics, is database dependent, and the ASM has great concern that the Treaty will encourage entrepreneurs not only to compile databases and extract fees for their use, but to repackage, claim copyright, and charge researchers for the use of data which now is in the public domain. Important genetic resources, including the thousands of sequences of human genes compiled on a continuing basis and released to the public by the U.S. National Institutes of Health, could be commercialized by enterprising individuals, defeating the attempt to make this data available to all to use in the hunt for new drug targets to treat genetic disorders.

The ASM concurs in the position expressed by the National Academy of Sciences, Engineering and Medicine, the Association of American Universities, and the National Association of State Universities and Land Grant Colleges that a consensus U.S. position should be developed before an arbitrary nonrepresentative and inappropriate position is incorporated into the provisions of an international treaty. The ASM would like to participate in those deliberations, or, at a minimum, be kept informed of their progress.

The ASM believes the Diplomatic Conference scheduled for December 1996 should be convened, but that its agenda should be limited to a consideration of protocols and instruments for the protection of literary and artistic works, and for the protection of performers and producers of phonograms. Consideration of the Treaty for the Sui Generis Protections of Databases should be delayed until there has been opportunity to explore fully how best to provide database compilers and vendors with the protection they require, and still provide a "fair use" exemption for the research and education communities.

The ASM appreciates this opportunity to comment on the draft Treaty, and is prepared to assist the Patent and Trademark Offices in its future endeavors.