Reutilization and Legal Protection of Non-Copyrightable Database Contents

The availability of data on the web and the improvement of technologies have made it increasingly easy to reuse existing data to create new databases and provide value-added services. Meanwhile, initial database creators have been seeking legal protection for their data. After presenting a brief history of legislation related to legal protection for non-copyrightable database contents, we discuss challenging issues to be considered in formulating a database protection regulation. These issues can be addressed from the perspective of economics. Results from a preliminary economic analysis are presented. The findings indicate that depending on investment required to create the initial database and the level of differentiation between the initial database and the reuser database, the choice of a social welfare-enhancing regulation can allow for no reuse, free reuse, or fee-paying reuse

Safe to Be Open: Study on the Protection of Research Data and Recommendations for Access and Usage

Openness has become a common concept in a growing number of scientific and academic fields. Expressions such as Open Access (OA) or Open Content (OC) are often employed for publications of papers and research results, or are contained as conditions in tenders issued by a number of funding agencies. More recently the concept of Open Data (OD) is of growing interest in some fields, particularly those that produce large amounts of data – which are not usually protected by standard legal tools such as copyright. However, a thorough understanding of the meaning of Openness – especially its legal implications – is usually lacking. Open Access, Public Access, Open Content, Open Data, Public Domain. All these terms are often employed to indicate that a given paper, repository or database does not fall under the traditional “closed” scheme of default copyright rules. However, the differences between all these terms are often largely ignored or misrepresented, especially when the scientist in question is not familiar with the law generally and copyright in particular – a very common situation in all scientific fields. On 17 July 2012 the European Commission published its Communication to the European Parliament and the Council entitled “Towards better access to scientific information: Boosting the benefits of public investments in research”. As the Commission observes, “discussions of the scientific dissemination system have traditionally focused on access to scientific publications – journals and monographs. However, it is becoming increasingly important to improve access to research data (experimental results, observations and computer-generated information), which forms the basis for the quantitative analysis underpinning many scientific publications”. The Commission believes that through more complete and wider access to scientific publications and data, the pace of innovation will accelerate and researchers will collaborate so that duplication of efforts will be avoided. Moreover, open research data will allow other researchers to build on previous research results, as it will allow involvement of citizens and society in the scientific process. In the Communication the Commission makes explicit reference to open access models of publications and dissemination of research results, and the reference is not only to access and use but most significantly to reuse of publications as well as research data. The Communication marks an official new step on the road to open access to publicly funded research results in science and the humanities in Europe. Scientific publications are no longer the only elements of its open access policy: research data upon which publications are based should now also be made available to the public. As noble as the open access goal is, however, the expansion of the open access policy to publicly funded research data raises a number of legal and policy issues that are often distinct from those concerning the publication of scientific articles and monographs. Since open access to research data – rather than publications – is a relatively new policy objective, less attention has been paid to the specific features of research data. An analysis of the legal status of such data, and on how to make it available under the correct licence terms, is therefore the subject of the following sections

Policy for the Protection and Reuse of Non-Copyrightable Database Contents

With the increasing use of the Internet, many of us feel strongly about the free and unfettered exchange and use of information. But the actual situation is not that simple. After the European Union adopted the Database Directive to provide legal protection for non-copyrightable database contents, the U.S. has introduced six legislative proposals, all of which failed to become a law. One of the major difficulties of formulating a socially beneficial database law is in finding the right balance between protecting the incentives of creating publicly accessible databases (including semi-structured web sites) and preserving adequate access to factual data for value creating activities. We address the problem by developing an extended spatial competition model that explicitly considers the inefficiencies in policy administration. With the model, we can determine various conditions and the corresponding socially beneficial policy choices. The results show that, depending on the cost level of database creation, the degree of differentiation of the reuser database, and the efficiency of policy administration, the socially beneficial policy choice can be protecting a legal monopoly, encouraging competition via compulsory licensing, discouraging voluntary licensing, or even allowing free riding. The results provide useful insights to the formulation of a socially beneficial database protection policy

Legal Protection of Sui Generis Databases

It is undeniable that databases are an essential building block of the Information Society. Today, every business in developed countries operates fully based upon clientele databases, economic statistics, and industries profiles; and innovation and invention rely heavily on collections of facts, data and information that scientists discovered in research and development or exchanged among them. Legislatures have envisaged a need and significance of the free flow of access to information, thereby prescribing copyright protection only to creative selection and arrangement of the contents of databases, not the factual contents contained within. However, the advent of technology avails unconventional methods of copying, altering, and recompiling to manipulate the contents of databases. Anyone can make use of technology, gather information, recompile them, and take this opportunity to enter into market, being possessed by original players and creating unfair competition. Original database makers, therefore, are suffering from losses in investment and crying for a legal solution, giving rise to possible intellectual property right of sui generis databases or a right of its own kind. Throughout history, it is clear that copyright extends only to the creative or expressive contents, not the underlying facts, data, or information. Although there were battles between publishers or authors, copyright law meant to reward creative genius rather than contribution of finance or pure labor. Over centuries, its rationale remained unchanged, promoting a proper balance of author\u27s incentive to complement creativity cycle and the public\u27s free and open access to information to keep the market place of ideas intact. For the protection of collections and compilations, Article 2(5) of the Berne Convention makes clear that it extends only to the creative elements of the selection and arrangement of the contents. However, it is insufficient for database industries who have contributed capitals and entrepreneurial efforts in the making of databases. To maximize profit, lobbyists from database industries have urged their governments to recognize a property right in the compiled facts and information resulted from entrepreneurial effort alone. This endeavor has reached not only national level, but also international. Such concept of protection, thus, opposes the principle of the free flow of access to information that copyright law has promoted. The scientists and those, who are in the educational field, express concern that such regime impedes the free flow of access to facts, data, and information by increasing a cost to access them. Developing and least developed countries worry about negative impacts of sui generis protection on their socio-economic infrastructure, particularly human resources development, not only because of an increasing cost to access, but a fear of losing their traditional knowledge, such as collections of undeveloped medical plants and compilations of unimproved medical treatments. A justifiable intellectual property right in sui generis databases, if any, must be considered and based upon the concept to achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedom for all in the global society to benefit from the progress of science and the use of arts and literatures

Legal Protection of Sui Generis Databases

It is undeniable that databases are an essential building block of the Information Society. Today, every business in developed countries operates fully based upon clientele databases, economic statistics, and industries profiles; and innovation and invention rely heavily on collections of facts, data and information that scientists discovered in research and development or exchanged among them. Legislatures have envisaged a need and significance of the free flow of access to information, thereby prescribing copyright protection only to creative selection and arrangement of the contents of databases, not the factual contents contained within. However, the advent of technology avails unconventional methods of copying, altering, and recompiling to manipulate the contents of databases. Anyone can make use of technology, gather information, recompile them, and take this opportunity to enter into market, being possessed by original players and creating unfair competition. Original database makers, therefore, are suffering from losses in investment and crying for a legal solution, giving rise to possible intellectual property right of sui generis databases or a right of its own kind. Throughout history, it is clear that copyright extends only to the creative or expressive contents, not the underlying facts, data, or information. Although there were battles between publishers or authors, copyright law meant to reward creative genius rather than contribution of finance or pure labor. Over centuries, its rationale remained unchanged, promoting a proper balance of author\u27s incentive to complement creativity cycle and the public\u27s free and open access to information to keep the market place of ideas intact. For the protection of collections and compilations, Article 2(5) of the Berne Convention makes clear that it extends only to the creative elements of the selection and arrangement of the contents. However, it is insufficient for database industries who have contributed capitals and entrepreneurial efforts in the making of databases. To maximize profit, lobbyists from database industries have urged their governments to recognize a property right in the compiled facts and information resulted from entrepreneurial effort alone. This endeavor has reached not only national level, but also international. Such concept of protection, thus, opposes the principle of the free flow of access to information that copyright law has promoted. The scientists and those, who are in the educational field, express concern that such regime impedes the free flow of access to facts, data, and information by increasing a cost to access them. Developing and least developed countries worry about negative impacts of sui generis protection on their socio-economic infrastructure, particularly human resources development, not only because of an increasing cost to access, but a fear of losing their traditional knowledge, such as collections of undeveloped medical plants and compilations of unimproved medical treatments. A justifiable intellectual property right in sui generis databases, if any, must be considered and based upon the concept to achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedom for all in the global society to benefit from the progress of science and the use of arts and literatures

Intellectual Property Rights in Data?

The international intellectual property system founded on the Paris and Berne Conventions in the late nineteenth century has been dominated by the patent and copyright paradigms, which articulate the legal protection of technological inventions and of literary and artistic works, respectively. Although this patent-copyright dichotomy was never as strictly observed abroad as in the United States, it nonetheless charted a relatively clear theoretical line of demarcation between legal incentives to create and the public interest in free competition. Any publicly disclosed technologies or information products that failed to meet the eligibility requirements of the domestic patent and copyright laws became public domain matter that anyone could freely appropriate. By the end of the twentieth century, in contrast, this line of demarcation had empirically broken down. The developed market economies, including the United States, enacted numerous special purpose intellectual property laws to protect industrial designs, plant varieties, integrated circuit designs, and other matter that typically failed to meet the eligibility requirements of either the patent or copyright models. The latest, and arguably most deviant, examples of this trend toward sui generis intellectual property rights are the European - and United States-sponsored initiatives in both national and international forums calling for creation of a new form of legal protection for the contents of databases. These initiatives aim to rescue database producers from the threat of market-destructive appropriations by free-riding competitors who contributed nothing to the costs of collecting or distributing the relevant data

Sui Generis database right: ripe for review?

In a digital era unoriginal collections of data, particularly those in electronic form, have new significance and value. Digital technology also renders such collections of information uniquely vulnerable to copying. The Directive on the legal protection of databases created a new sui generis right for databases in which there has been (qualitatively or quantitatively) substantial investment in obtaining, verifying or presenting the contents against unauthorised extraction or re-use of the whole or a substantial part. However, over-protection of such databases may remove essential information from the public domain, particularly where it constitutes an exclusive source. Under protection may be equally damaging, if the incentive to collate information is undermined by free-riding competition. It is as necessary, therefore, to strike as careful a balance of protection for unoriginal databases as for other intellectual property rights. The case of British Horseracing Board Limited v William Hill Organisation (2001) confirms infinitely extendable protection for dynamic databases, and their contents. The information at issue lay within the public domain, however the database maker constituted its only effective source. Fears of inhibiting information flow have contributed to debate over database protection in the United States, where copyright and unfair competition provide a lesser degree of support to database makers. Consequently, whether the new right encourages investment in creating databases as well as allowing access to database-stored information, is questionable. The question is timely for the Directive is due for review. At the same time both WIPO and the US are debating new provisions, and the Court of Appeal has referred questions of interpretation of the Directive to the European Court of Justice. It is time to reconsider, in particular, the draft Directive's proposed compulsory licences for the sui generis right. Alternatively, the exceptions to infringement could be better adapted to allow for private uses of information, or a better solution might lie in a form of unfair competition law restricted to parasitic conduct and unjust enrichment, without protection for the underlying information content