Edited by Jacques de Werra
Chapter 5: Issues in modern licensing of factual information and databases
This chapter considers some of the issues faced in licensing and other transactions concerning transfer, use or making available of factual information or databases. We do not focus here on licensing information protected by copyright or trade secrecy laws, although many factual data- base resources are covered, at least to some extent, by property rights derived from these sources of law. The purpose of this chapter is to explore the interaction between various sources of law related to database and factual information transactions and the contractual terms that establish them. Although copyright and some other property rights may apply, licensing of factual information and databases is ordinarily not supported by strong intellectual property rights held by the licensor such as are associated with patent and traditional copyright licensing.1 This affects the scope and nature of enforcement tools for the licensor and also may place enhanced importance on technological or other regulation of performance and use. On the other hand, depending on the subject matter and commercial context, factual information and database licensing may involve expectations about accuracy and quality of the licensed subject matter that may not be present in pure rights-based licensing such as in patent and copyright law. Both of these characteristics of factual database licensing mean that the terms of the contractual license carry a more substantial burden in setting out the transaction and its limits than occurs in reference to some other types of licensing. The general licensing framework that we will discuss here includes the following issues:
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