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 10: Remedies for Over- and Under-Protection and Proposed Database Protection Model

Estelle Derclaye


10. Remedies for over- and underprotection and proposed database protection model Introduction Chapter 9 showed that, so long as it is not overly broad, an intellectual property right is a more adapted protection for databases. However, while the many intellectual property models proposed by commentators contain many good ideas, they are too vague, incomplete or not clearly based on the economics of intellectual property, the respect of human rights and the public interest. Chapter 10 attempts to address those issues. The proposed model is a more balanced intellectual property right than the European sui generis right. It takes the latter as a general model of protection, incorporating its adequate features and proposing remedies for its under- and over-protective features. Among those are features of some of the American database bills which attempted to create a more balanced protection of databases, as well as ideas from the proposed models discussed above. It is shown that the Directive could be amended or sometimes simply interpreted to achieve a better balanced protection. The chapter suggests amendments to this effect. Although some proposed abolishing the sui generis right, it is submitted that this is a disproportionate solution because the overprotective aspects of the right are minimal and can be cured through less drastic Namely H.R. 354 and H.R. 1858 (H.R. 354 reintroduced a slightly different version of the earlier H.R. 2652, i.e. it was similar but included more exceptions. The very first bill, H.R. 3531, was broadly similar to the sui generis right but...

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