A Comparison of the Legal Protection of Databases in the United States and EU: Implications for Scientific Research

Abstract

In this paper the laws governing the protection of databases in Europe and the United States are considered, as they provide a useful comparison of different approaches to protection. The potential implication of US and EU laws on bioinformatics is also explored, as bioinformatics presents difficult issues centring on the commercial nature of the science. In focussing on copyright protection in the US and the sui generis protection under the EU Directive, it is argued that US copyright law currently provides an insufficient level of database protection. While the tort of misappropriation exists in the US, it is argued that it remains limited in use in protecting database owners due to the onerous cause of action requirements. As such, for protection to be sufficient under the US regime database owners are required to proactively seek protection, for example through the creation of contracts and TPMs. While these are not insufficient ways to protect databases, it may be the case that these options promote the locking up of data and so are not optimal. Conversely, following the ECJ's clarification of the function of the sui generis right of database protection in the case of BHB v William Hill, it is argued that the Directive may provide a more effective means of promoting the openness of information as opposed to a closed system where database owners are less likely to share data. In considering the effects of the Directive on bioinformatics research, it is however contended that the Directive requires further fair dealing exceptions for non-commercial use. It is to be noted that while these arguments remain pertinent to database protection beyond only scientific databases, there is a particularly interesting question with respect to the effects of the law on science that is worth considering.