EU Database Protection for Information Uses Under an Intellectual Property Scheme: Has the Time Arrived for a Flexible Assessment of the European Database Directive?

Abstract

Nearly seven years ago, the European Database Directive introduced its much disputed sui generis protection for databases requiring some substantial investment. The objective was to stimulate harmonised standards of protection amongst member states, whilst to simultaneously secure a high level of protection in order to incite the creation of a diversified information product market. The gap of protection most notably surfaced with respect to a lack of original-ity for most collections of information, in particular following the US Supreme Court decision in Feist. The sui generis - or maker - right has been implemented now by all EU member states, a large number of which have opted for an implementation as a neighbouring right into their respective copyright acts . This form of protection causes problems as it protects information - i.e. a substantial part of the database contents' as such. The primary notion underlying such form of protection is that protection can most safely be achieved by an assessment based on a conventional Intellectual Property methodology. The characterization as an allied right to copyright, and consequentially as a proprietary right in information, can undeniably be deduced from three components shaping the directive's juridical architecture: a fixed term of protection, transferability and, perhaps most importantly, the allocation of an exclusive right in the contents. The traditional Intellectual Property method differs from the open and flexible unfair competition system employed with respect to databases. Under an Intellectual Property model, what needs to be proven is merely subsistence so as to create a right in information, not market harm or jeopardy to the actual investment. Thereby, the reason and prerequisite for protection - i.e. substantial investment - is not necessarily taken into account when assessing infringement. Infringement occurs when a substantial part, evaluated qualitatively or quantitatively, is extracted or re-utilised. As will be discussed in this paper, such methodology comes dangerously close to protecting information rather than investment.