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 7: The Protection of Databases by Contract in the United States

Estelle Derclaye


Introduction This chapter attempts to answer the question whether American contract law adequately protects investment in database creation. As explained in Chapter 4, since fully negotiated and adhesion contracts have different effects on protection, they will be envisaged separately. As in Chapter 4, it is assumed that contracts are valid under contract law. American producers of uncopyrightable databases can use and often do use contracts to secure protection of their compilation efforts. As explained in section 1 of Chapter 4, parties to a contract have complete freedom as to their contract’s content as long as it does not breach competition law, the law on unfair contract terms or constitutional rights, and is not abusive. Therefore, provided they do not breach any of those laws, and this is also assumed, American database producers can secure absolute protection of their database, that is, can protect a database which has not required any investment, prohibit use of insubstantial parts, of substantial parts for purposes of teaching, research and so on, prohibit the further transfers of the copies of their databases and/or secure indefinite protection. These contracts can be called restrictive since they bypass the limits that an adequate database protection must have. Two questions must be addressed. First, do fully negotiated contracts adequately protect databases? Secondly, do adhesion contracts adequately protect databases? 1 Do fully negotiated contracts adequately protect databases? In the case of a fully negotiated contract, parties have equal bargaining power and only consent to restrictions upon their rights in the...

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