The Legal Protection of Databases
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The Legal Protection of Databases

A Comparative Analysis

Estelle Derclaye

The protection of the investment made in collecting, verifying or presenting database contents is still not harmonised internationally. Some laws over-protect database contents, whilst others under-protect them. This book examines and compares several methods available for the protection of investment in database creation – namely, intellectual property, unfair competition, contract and technological protection measures – in order to find an adequate type and level of protection. To this effect, the author uses criteria based on a combination of the economics of information goods, the human rights to intellectual property and to information, and the public interest, proposing a model that can be adopted at international and national levels.
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Chapter 1: Identification of the Criterion Determining Adequate Database Protection

Estelle Derclaye


Introduction The object of the book is to determine the most suitable protection for investment in making databases, that is, in gathering, verifying and presenting their contents. There are mainly four different types of protection to achieve this: intellectual property, unfair competition, contracts and TPMs, together with the legal protection against their circumvention. These can be used alternatively or in combination. Before examining these proctections in turn, and in order to decide which is best to protect investment in databases, one must establish whether the current regimes over- or under-protect investment in databases. The criterion to ascertain whether database contents are currently under- or overprotected in the United States and Europe must be determined. To find this criterion, looking at the past and current protection of database investment is a good starting point. This is also an appropriate way of demonstrating that databases need some form of legal protection. The protection of investment in database creation is not a new issue. In Europe, before the enactment of the Directive, countries had protected investment in database creation in differing ways. In the Nordic countries and the Netherlands, protection was provided by way of addition in copyright laws of a neighbouring right protecting contents rather than structure, and for a shorter period. Other countries which did not have a catalogue rule or geschriftenbescherming used parasitism to protect databases (in France for example). The United Kingdom had its traditional sweat of the brow copyright for tables and compilations (the ancestors of databases) which...

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