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 9: Intellectual Property, Unfair Competition or Restitution?

Estelle Derclaye


Introduction Chapter 9 examines which type of protection is best suited for databases. The question is, as has been put by some: ‘is the legal solution to the problem of database protection to be found in the law of unfair competition or the law of intellectual property?’ One may add: is there a single adequate type of protection for all databases or should the protection be different for different types of databases? In other words, does one size fit all? As we have seen, contract alone is not an adequate alternative to either an intellectual property right or an unfair competition type of protection for databases. First, only adhesion contracts can bind third parties. While contracts would be a good alternative to an intellectual property right for multiple source database producers if they always used adhesion contracts, these contracts would generally over-protect sole source producers. Adhesion contracts have two other disadvantages as a model for international protection of databases. First, in the United States, they run the risk of being pre-empted. Secondly, although freedom of contract generally prevails everywhere, rules regulating abuses of this freedom differ in each country. In order for adhesion contracts to constitute an adequate database protection, rules on unfair contract terms, abuses of right and consumer protection would need to be harmonized internationally. This is far from an easy task. Not surprisingly contract has not been suggested as a suitable protection by commentators. Even if TPMs are not a legal protection, they could be thought...

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