Chapter 9: Intellectual Property, Unfair Competition or Restitution?
Introduction Chapter 9 examines which type of protection is best suited for databases. The question is, as has been put by some: ‘is the legal solution to the problem of database protection to be found in the law of unfair competition or the law of intellectual property?’ One may add: is there a single adequate type of protection for all databases or should the protection be different for different types of databases? In other words, does one size fit all? As we have seen, contract alone is not an adequate alternative to either an intellectual property right or an unfair competition type of protection for databases. First, only adhesion contracts can bind third parties. While contracts would be a good alternative to an intellectual property right for multiple source database producers if they always used adhesion contracts, these contracts would generally over-protect sole source producers. Adhesion contracts have two other disadvantages as a model for international protection of databases. First, in the United States, they run the risk of being pre-empted. Secondly, although freedom of contract generally prevails everywhere, rules regulating abuses of this freedom differ in each country. In order for adhesion contracts to constitute an adequate database protection, rules on unfair contract terms, abuses of right and consumer protection would need to be harmonized internationally. This is far from an easy task. Not surprisingly contract has not been suggested as a suitable protection by commentators. Even if TPMs are not a legal protection, they could be thought...
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