A Comparative Analysis
Chapter 2: The Protection of Databases by the Sui Generis Right
Introduction It has been said that the database sui generis right is ‘one of the least balanced and most potentially anti-competitive intellectual property rights ever created’. It is true that, apart from patents, the sui generis right is paradoxically the strongest intellectual property right with the most borderline and suspect object of protection (raw data). The aim of this chapter is to discover whether the sui generis right over-protects databases or protects them adequately. In order to establish this, the several aspects of the right which define its scope (definition of subject-matter, protection requirement, rights, exceptions and duration) are examined. The Directive’s articles dealing with those aspects are analysed together with the interpretation of the courts. The provisions of the French and British implementing laws will only be analysed when the Directive has left a choice to Member States. When the Directive leaves no choice, Member States have to comply with the Directive’s text and whether or not national laws do, the Directive’s text prevails. Thus a review of the Directive alone is sufficient and issues of incorrect implementation are not discussed. There is over-protection when the sui generis right respects neither the limits set out in the economic analysis nor the additional limits commanded by the human rights approach and by the public interest. There are several ways of achieving the balance. One way is to have a broad subject-matter, a protection requirement easy to fulfil and broad exclusive rights. In this case, to achieve a balance, a high...
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