A Handbook of Contemporary Research
Edited by Paul Torremans
Chapter 4: Can and should misappropriation also protect databases? A comparative approach
Estelle Derclaye1 Introduction Article 13 of the Database Directive2 provides that [t]he Directive shall be without prejudice to provisions concerning in particular . . . unfair competition. . . . It therefore allows Member States to protect databases by unfair competition law in addition to the sui generis right. In other words, database producers can protect their databases by the sui generis right and unfair competition simultaneously if their national laws allow it. This chapter aims at discovering whether this additional protection against unfair competition over-protects databases and if it does, remedies are suggested. It is concerned only with the database right, which protects the investment in collecting, verifying or presenting data, and not copyright, which protects the structure of the database. Over-protection exists when the same subject-matter (here investment in databases) is protected more than once by similar types of protection at the same time. I call this type of over-protection ‘simultaneous over-protection’.3 It is against the intellectual property paradigm that an effort be rewarded twice. More protection leads to rent-seeking and all the negative effects of monopolies. Over-protection must therefore be avoided. This chapter examines the protection of databases against parasitism.4 Unfair competition acts Lecturer in Law, University of Nottingham. Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, OJ L77/20, 27.03.1996 (‘the Directive’). 3 Two other types also exist. There is a posteriori over-protection if the intellectual property protection has expired but the database can still be protected against parasitism and...
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