Balancing Public and Private Interests in Database-Protection

Abstract

Ever since the proposed 1996 WIPO-treaty on the legal protection of database failed the sui generis right granted for non-original databases was considered a peculiar oddity in the European Union. Even though several proposals on database-protection have been debated in the US both on the federal and state level (see HR 354 of January 1999, HR 1858 of May 1999, HR 3261 of October 2003 and HR 3872 of March 2004 as well as Georgia Bills from 2001 and 2003), a strong lobbying effort from research facilities, libraries and Internet search engine providers has prevented any law from coming into effect. This paper not only describes the major advantages of the European directive and its implementation in Germany, but also attempts to identify specific flaws and propose future changes. The first half of the paper tries to distinguish databases from other protected works. The criteria of vertical and horizontal independence are suggested as a means to distinguish between (single) multimedia-creations and (dividable) database-elements. Special focus is given to open source software which is developed in collaboration but controlled by a single individual. In addition to a detailed analysis and explanation of both the copyright-provisions and the sui generis right of Directive 96/6 EG and their respective implementation in Germany, the paper also looks into other means of protection like misappropriation, unfair competition and patents. The second part focuses on the effectiveness of the current exceptions carved into the rights for the benefit of third parties. The discussion focuses on the most recent ECJ-decisions (IMS Health, Fixtures Marketing, British Horseracing Board). Special attention is also given to the interrelation between the Database-Directive and the recent Harmonization-Directive which increases protection by allowing for non-circumventable technical measures. The paper concludes that it is highly questionable whether the current exceptions (as interpreted by the courts) sufficiently address the worries opponents bring up against similar legislation in other countries. Unlike copyright-law which is shaped by a mixed bag of well-established limitations, the lack of experience in protection of non-original works has lead to a system unlikely to balance the interests of the creator and the public. It is especially worrisome that the directive effectively privileges online-content over content distributed on tangible media. It is also questioned, whether states should be able to get database-protection (but no copyright) on public registers in the light of the constant move to further transparency.