Database Protection—The European Way

In 1996, the European Union (EU) finally adopted the EU Database Directive (Directive). The Directive created a two-tier protection scheme for electronic and non-electronic databases. Member states are required to protect databases by copyright as intellectual creations, or to provide a novel sui generis right to prevent unauthorized extraction or re-utilization of the contents of a database. The difference between the two is that copyright infringement implies copying the structure, while the sui generis right infringement implies copying the contents themselves, irrespective of their copyrightability. It has yet to be seen, when considering the way in which member states have implemented the Directive and the way in which national courts apply domestic law, how the Directive has succeeded in harmonizing European Commission (EC) law with regard to the protection of databases

The legal protection of databases from copyright to dataright.

PhDThe vast and sweeping developments, which have occurred recently in the fields of computers, telecommunications and information technologies have stimulated the formation of a new global market of electronic information services and products, in which databases are principal components. Within the context of Intellectual Property Law, these advances challenge the traditional legal rules, resulting in ongoing reforms for adapting the law of intellectual property to the novel environment. Initiatives discussed in this study for determining the appropriate international legal standards for the protection of databases are the Agreement on Trade Related Aspects of Intellectual Property (1994), the present discussions in the World Intellectual Property Organisation (WIPO), and the European Union's Directive on the Legal Protection of Databases (1996). The last initiative constitutes the most comprehensive attempt to resolve the issues involved in the protection of databases within the realm of intellectual property law. A particular reference is made to international copyright law and its adequacy to provide a suitable legal regime for the protection of databases. Furthermore, the rules of database copyright law, as applied in the United Kingdom and the United States, are examined and compared in the light of the anticipated reforms derived from the above-mentioned initiatives. From these explorations, the thesis concludes that copyright law has a limited application in the protection of databases. Moreover, the copyright regime as applied to databases can lead to under-protection of certain databases and over-protection of others. Therefore, a tailor-made intellectual property regime, termed in this study as dataright, must be developed as an adequate response. The dataright regime as introduced in the above European Union Database Directive is thoroughly examined and compared to proposals made by WIPO and by the United States Congress, as well as to alternative models of database protection. The quest for the adequate dataright system is considered as a balance of rights among database producers and users to the extent that incentives for database creation and dissemination are secured without excessive effects on access to information and free competition. The debate of how to achieve this balance has focused on whether the appropriate approach is to adopt unfair competition law, or to introduce a sui generis exclusive-right regime. The thesis demonstrates that whichever starting point is adopted, the results are substantially similar on fundamental points. The research concludes with detailed suggestions towards the adoption of a proposed Dataright Treaty, thus reconciling competing approaches and producing an international database protection system, which is a necessity for the functioning of the global information market

INFORMÁTICA, DIREITO DE AUTOR E PROPRIEDADE TECNODIGITAL - ABSTRACT

Informática, Direito de Autor e Propriedade Tecnodigital corresponds to the academic dissertation that I have presented in 1998 at the Faculty of Law of the University of Coimbra. It is a deep and comprehensive analyse of the adaptation process of copyright law to the challenge of digital technologies at European level, regarding international requirements and different traditions of comparative law. In particular, the study is focused on the legal protection of computer programs, electronic databases and technical systems of protection and management of copyright objects

The Law and Economics of Databases: A Balancing Act

In this paper, I demonstrate that the existing legal frameworks for database protection are inadequate – the American framework under-protects databases, while the European framework over-protects. This paper presents an economic analysis of the current scope of legal protections for databases versus the ideal, with an especial emphasis on the role of intellectual property rights in providing these protections, and concludes with proposals for an ideal system. After an overview of the current systems of legal protections for databases in the United States (US) and the European Union (EU), there will be an explanation of how different types of laws (competition, contract, and most importantly, intellectual property rights) impact the production and innovation of databases. The analysis will show that intellectual property rights are the most comprehensive and efficient form of legal protection due to its ability to limit transaction costs, provide adequate incentives for production, and maintain a reasonable barrier to entry. The scope and specificity of legal protections affects both the static and dynamic efficiency of markets, impacting not just the health of market functions, but also the growth and development of innovation. The proper scope of protection and whether intellectual property rights are the optimal source of protection depends on the economic nature of databases. If databases were to be treated as a commodity by the law, it is necessary for the law to accurately reflect the type of good that it is regulating, as different types of goods require different incentive structures. The paper will conclude with recommendations for an ideal legal system for the protection and regulation of databases, starting with accurately defining databases and ending with reasonable terms for copyrights. The solution is to find the balance between the US and the EU systems in terms of issue definition, economic incentives, and legal theory

The Protection of Databases

In Parts I and II of this Paper, the author analyzes the legal protection of databases first in international treaties, in particular the Berne Convention and the WTO TRIPS Agreement, and second under national and regional copyright, sui generis, or other (e.g., tort) law in Europe (both the European Directive on the legal protection of databases of 1996, which was under review, and a number of relevant national laws), the United States, and a number of foreign jurisdictions (Australia, Canada, China, Nigeria, Russia, and Singapore). In Part III, the author provides a critical analysis of the effort to expand the legal protection of databases from both theoretical and empirical perspectives. In his conclusion, the author suggests three paths for the future evolution of the protection of databases at the international level

The Protection of Databases

In Parts I and II of this Paper, the author analyzes the legal protection of databases first in international treaties, in particular the Berne Convention and the WTO TRIPS Agreement, and second under national and regional copyright, sui generis, or other (e.g., tort) law in Europe (both the European Directive on the legal protection of databases of 1996, which was under review, and a number of relevant national laws), the United States, and a number of foreign jurisdictions (Australia, Canada, China, Nigeria, Russia, and Singapore). In Part III, the author provides a critical analysis of the effort to expand the legal protection of databases from both theoretical and empirical perspectives. In his conclusion, the author suggests three paths for the future evolution of the protection of databases at the international level

The Protection of Maps and Spatial Databases in Europe and the United States by Copyright and the Sui Generis Right, 24 J. Marshall J. Computer & Info. L. 195 (2006)

Spatial data and applications play an ever-increasing part in our economy and in our society in general, but the protection of spatial databases by intellectual property rights seems to be a challenge because the Internet and information technology have caused a considerable increase in the copying of data, maps, route descriptions, hiking trails, etc. The illegal copying of spatial data, however, has caused the data producers to turn to several means of protection, such as intellectual property legislation, unfair competition, confidentiality and privacy. This paper begins by determining what is meant by spatial data. Thereafter, the paper reflects on the protection of maps by copyright in the European Union and the United States, both as pictorial representations and as compilations. In the European Union, a solution to the problem might be found in the protection of databases by the sui generis database right, but the curtailing of this right by the European Court of Justice, may have jeopardized the creation of spatial data itself. In the U.S., there is no such thing as a database right, even though the idea has been on the legislator’s table more than once, but case law may provide data producers some protection. For instance, Feist Publications v. Rural Telephone Service Co. stated that spatial databases may be protected by copyright if they show a minimum level of creativity. The paper, thereafter, examines the consequences for copyright protection of the transfer from analogue to digital maps and spatial databases. Finally the paper addresses the sui generis database right, which is the European solution for protection of spatial databases that do not meet the criteria for copyright protection

Large-scale databases and interoperability in migration and border policies:The Non-Discriminatory Approach of Data Protection

In the EU, different measures have been adopted with regard to the storage and exchange of personal data of third-country nationals for external border controls. Large-scale databases and risk assessment are used to facilitate the entry of those considered as ‘bona fide travelers' and to identify those considered as a risk of irregular migration or security threat. The purposes of existing databases have been gradually extended, blurring the line between the objectives of immigration control and security and law enforcement. Emphasizing the non-discriminatory approach of data protection and applying criteria from the case-law of the Court of Justice of the European Union (CJEU), this contribution questions the legitimacy of these measures from the perspective of the principles of necessity and proportionality, purpose limitation, and the prohibition of automated-decision making

Investigative genetic genealogy: An ethical and privacy assessment framework tool is needed

[Excerpt] Investigative genetic genealogy (IGG) is a technique for identifying criminal suspects that involves uploading a crime scene DNA profile to one or more genetic genealogy databases to identify a criminal offender’s genetic relatives and, eventually, locating the offender within the family tree in both cold and active law enforcement cases. Law enforcement agencies typically employ the services of a genetic genealogist who will work with any DNA matches retrieved following the upload of DNA profiles, in an attempt to identify the victim or suspect of interest through networks of cousin matches. In recent criminal cases, IGG was used on free online genetic databases, sparking high controversy in the public domain [1–4]. In this commentary, we argue for the urgent need for an ethical and privacy assessment framework that helps to balance the risks and benefits of IGG to society.EC - European Commission(undefined

European Union: a guide to tracing working documents

In legal research, particularly in international and comparative law, it is often necessary to trace working documents, or “travaux préparatoires,” in order to get a clear view of how negotiations have affected the original draft of a document.This article aims to clarify some of the distinctions between different categories of working documents and provides details of some of the databases and collections which are essential for research into the workings of the European Union