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 5: The Protection of Databases by Technological Measures and Anti-Circumvention Provisions in Europe

Estelle Derclaye


5. The protection of databases by technological measures and anticircumvention provisions in Europe Introduction As we know, Article 13 of the Directive allows the protection of sui generis right-protected databases by other means. Although Article 13 does not list the protection of databases by TPMs and the legal protection against their circumvention (also called anti-circumvention provisions), as its wording is ‘[t]his Directive shall be without prejudice to provisions concerning in particular copyright, rights related to copyright…’ (emphasis added), TPMs and anti-circumvention provisions can be included as potential additional protections for databases. Otherwise, as some commentators have argued, such additional protection could be classed as rights related to copyright. A stronger proof that TPMs and anti-circumvention provisions can protect sui generis right-protected databases is Article 6 and specifically 6.4.5 of the Copyright Directive, which relates to the legal protection of TPMs, and expressly states that such protection applies to the Database Directive. Thanks to TPMs and the anti-circumvention provisions as set out in Article 6 of the Copyright Directive, a database producer may be able to protect its database over and above the protection granted by the sui generis right. Therefore, similar problems of possible over-protection as identified in Chapters 3 and 4 can also arise. However, it must be noted that this protection can only apply to databases that can be protected by technical means. This will include, at this stage of technical development, mainly those in digital format (off- or online). The conclusions drawn in this chapter...

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