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 3: The Protection of Databases by Unfair Competition in Europe

Estelle Derclaye


Introduction Article 13 of the Directive provides that ‘[t]he Directive shall be without prejudice to provisions concerning in particular (…) unfair competition (…) and the law of contract’. It therefore allows Member States to protect databases by unfair competition and contract laws in addition to the sui generis right. In other words, database producers can acquire protection for their databases by the sui generis right, contract and unfair competition simultaneously if their national laws allow it. This chapter aims at discovering whether protection against unfair competition over-protects databases. As identified in the first chapter, there is over-protection by accumulation of protections in three ways. There is overprotection when the same subject-matter (here investment in databases) is protected more than once by similar types of protection (in this book, parasitism, contract and TPMs) either at the same time (simultaneous over-protection), once the intellectual property protection has expired (a posteriori) or when no intellectual property protection is available at all (negatively). There is also over-protection in the same three ways when the protection granted by contract or parasitism is not only similar and added to intellectual property but goes over and above the protection of an adequate database protection. Chapter 3’s analysis will be limited to the protection of databases against parasitism. Unfair competition acts other than parasitism such as disparagement, trade secret protection or misleading advertising are not aimed at protecting investment but at protecting reputation, secrecy or guard against false allegations. Thus there is no cumulation since the subject-matters protected under...

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