Chapter 4: The Protection of Databases by Contract in Europe
Introduction As we have seen in Chapter 3, Article 13 of the Directive allows database producers to protect their databases contractually in addition to the sui generis right. The same problems of possible over-protection identified in the last chapter therefore arise. Chapter 4 is concerned with two questions. First, is it over-protective to allow database producers to obtain additional protection for their sui generis right-protected database by contract, over and above the protection granted by the sui generis right (simultaneous over-protection)? In other words, is it over-protective to override the limits of the sui generis right by contract (section 2)? Secondly, is it over-protective to allow contractual protection of databases not protected by the sui generis right, either because they were protected but have now fallen into the public domain or because they do not meet the requirements to be protected by the sui generis right (over-protection a posteriori and negative over-protection) (section 3)? The aim of the analysis is not to determine whether such contracts are valid under contract law. This will be assumed. The chapter will only concentrate on the issue underlying the two identified questions, namely whether certain use of contracts over-protects database producers. Before tackling these questions, two types of contracts must be distinguished as their effects are different (section 1). 1 Fully negotiated and adhesion contracts Database producers can protect their databases by fully negotiated contracts (or contracts at arm’s length) or by adhesion (or standard form) contracts. When a contract is fully negotiated, parties...
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