Legal protection of databases: A wider transatlantic divide?

Abstract

The divide between the protection afforded to databases in Europe and that afforded to those in the USA is ‘transatlantic’ in every sense of the word. As previously described, this is because in the European Economic Area (EEA), many databases benefit from the legal protection conferred by database right. This intellectual property right aims to protect the investment in obtaining, verifying and presenting the contents of a database by preventing their unauthorised extraction or re-utilisation. Database right was created though the enactment of national laws pursuant to the 1996 European Directive on the Legal Protection of Databases (96/9/EC, ‘the Directive’). There is no direct equivalent of database right in the USA. Protection of databases in the USA is still, to a large extent, limited by the so-called ‘modicum of creativity’ copyright threshold set by the Supreme Court in Feist. For this reason, it is generally accepted that databases enjoy greater protection in the EEA than they do in the USA. As reported previously, a hearing concerning database right and the interpretation of the Directive took place at the European Court of Justice (ECJ) in late March 2004. Specific questions had been referred by the national courts of Finland, Greece, Sweden and the UK, and the way in which the ECJ answers those questions will have wide-ranging implications for the degree of protection that European databases enjoy. Since the hearing, the Advocate General has provided opinions which very much favour owners of databases. These opinions may or may not be followed by the ECJ as described below. This paper examines some of the key issues addressed in the opinions and explains how, if followed, they would result in stronger protection for databases in Europe. Developments in US database law are also considered and an assessment is made as to whether the transatlantic database protection divide is likely to increase.