When Information is Boxed Who Should Hold the Key?

Abstract

This article considers the danger of monopoly interests in data engendered by the European legal frameworks which protect the gathering and storing of information, illustrated by the intrepretation of the Court of Appeal in the United Kingdom of new sui generis database rights in British Horseracing Board v. William Hill (2001). This article also seeks to demonstrate that this is a wider issue. Paradoxically, technology both facilitates wide access to digitally stored information and gives right owners control over that access. This control is protected both by the Digital Millennium Copyright Act and the Copyright in the Information Society Directive. Competition proceedings do not provide access to a non-competitor. Alternatives lie in compulsory licenses, a 'copy-duty', or expanded copyright and database right exceptions. The Database Directive is under review. Modifying the rights' exceptions may better facilitate a suitable balance between protection and justifiable access. A WIPO Treaty could be a positive and cohesive strategy globally, harmonizing the means of access to information without eroding incentives for collating that data.