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 8: The Protection of Databases by Technological Measures and Anti-Circumvention Provisions in the United States

Estelle Derclaye


8. The protection of databases by technological measures and anticircumvention provisions in the United States Introduction As has been noted in Chapter 5, the protection of databases by TPMs and anticircumvention provisions obviously only concerns databases in digital format. Chapter 8’s developments therefore also only apply to those databases. To the extent that a sole source database is commercialized in both analog and digital format, the protection by TPMs and anti-circumvention provisions alone may be over-protective even if the analog database remains unprotected. This is because the database producer can price the analog version so high that users cannot afford it but can only afford the digital locked-up version. This chapter will therefore assimilate sole source databases commercialized in both analog and digital format to sole source databases solely commercialized in digital format. As in Chapter 5, problems of over-protection mainly occur with sole source databases and the chapter will focus on those. The nature of TPMs and anti-circumvention provisions has been examined in Chapter 5, to which the reader is referred. This chapter therefore only envisages TPMs that are purely unilateral acts. Even more so than with contracts, thanks to TPMs, American database producers can secure total protection of their databases. In other words, they can override all the limits of an adequate database protection. In addition, the law may back this technical power. This chapter therefore addresses two questions. First, do TPMs adequately protect databases (section 2)? Secondly, do anti-circumvention provisions adequately protect databases (section 3)? In order...

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