Chapter 5: The Protection of Databases by Technological Measures and Anti-Circumvention Provisions in Europe
5. The protection of databases by technological measures and anticircumvention provisions in Europe Introduction As we know, Article 13 of the Directive allows the protection of sui generis right-protected databases by other means. Although Article 13 does not list the protection of databases by TPMs and the legal protection against their circumvention (also called anti-circumvention provisions), as its wording is ‘[t]his Directive shall be without prejudice to provisions concerning in particular copyright, rights related to copyright…’ (emphasis added), TPMs and anti-circumvention provisions can be included as potential additional protections for databases. Otherwise, as some commentators have argued, such additional protection could be classed as rights related to copyright. A stronger proof that TPMs and anti-circumvention provisions can protect sui generis right-protected databases is Article 6 and specifically 6.4.5 of the Copyright Directive, which relates to the legal protection of TPMs, and expressly states that such protection applies to the Database Directive. Thanks to TPMs and the anti-circumvention provisions as set out in Article 6 of the Copyright Directive, a database producer may be able to protect its database over and above the protection granted by the sui generis right. Therefore, similar problems of possible over-protection as identified in Chapters 3 and 4 can also arise. However, it must be noted that this protection can only apply to databases that can be protected by technical means. This will include, at this stage of technical development, mainly those in digital format (off- or online). The conclusions drawn in this chapter...
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