A Comparative Analysis
Chapter 7: The Protection of Databases by Contract in the United States
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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