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 6: The Protection of Databases by Unfair Competition in the United States

Estelle Derclaye


Introduction This chapter examines whether the American tort of misappropriation, the rough equivalent of the tort of parasitism in France, protects databases adequately using the criterion determined in Chapter 1. As it is very clear that the tort is insufficiently protective, a short overview of its origins and present status is sufficient. This summary will uncover the reasons why the tort is underprotective. 1 Origins and current status of the tort of misappropriation In the United States, as in France and the United Kingdom, free competition and the resulting public domain is the rule and intellectual property is the exception. The first principle of the law of unfair competition is the right to compete and it is the fundamental premise of the free enterprise system. As in the United Kingdom, there is no comprehensive common law tort of unfair competition. The term ‘unfair competition’ is simply a term which encompasses a series of different torts. There is, for example, a tort of palming off akin to the tort of passing off in the United Kingdom. Other unfair competition torts include infringement of trade name, disparagement, filching of trade secrets and misappropriation. Unfair competition acts are common law torts, and the law For more details, see e.g. Davison 2003, pp. 172ff. McCarthy 1996, pp. 1–4, n. 1.2 and also pp. 1–51, n. 1.27; Bonito Boats, Inc. v Thunder Craft Boats, Inc., 489 U.S. 141 (1989). McCarthy 1996, pp. 1–52, n. 1.27 citing the Restatement of the Law (Third)...

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