Legal Protection Of Databases Research Articles

What Can Big Data Protection Learn from Trade Secret Protection?

The nature of big data protection remains an enigma. By ‘big data’, we refer to data that are non-copyrightable, non-secret and do not fall into the scope of existing intellectual property laws. Assuming such data do require some sort of protection in order to incentivize investment, what form shall the protection take? Contract law, tort law, unfair competition law or a sui generis intellectual property law? There is no consensus among different jurisdictions. Some jurisdictions follow a property law approach. For example, the EU has been offering sui generis IP protection to databases with Directive 96/9/EC on the Legal Protection of Databases. In contrast, many other jurisdictions choose to follow a non-property law approach. Take the United States for example. A century after International News Service v Associated Press, in which the misappropriation doctrine was used to offer ad hoc protection to hot news, the US still has not introduced a sui generis right. Even though non-copyrightable, non-secret and valuable data do receive some legal protection, the ideal form of protection is yet to be clarified.

Legal Protection of Databases: Analysis of the ECJ judgements of 9th November 2004

Legal Protection of Databases: Analysis of the ECJ judgements of 9th November 2004

ОХОРОНА ПРАВ НА БАЗИ ДАНИХ

The state of legal regulation of databases according to the national legislation and EU laws is discovered. Pursuant to the national legislation, a database is a separate object of copyright – a complex of compositions, data or any other independent information in a freeform, including electronic, the components selection and disposition of which are available individually and can be found with the use of special searching system on electronic devices (computer) or other means. Since database is a complex of compositions, its application shall be carried out with the abidance of copyright on these compositions as the components of a database. If compositions are used with the copyright infringement, legal protection to a database cannot be provided. The author of a database is its creator – a natural person. In the absence of proof to the contrary, the author of a composition (including databases) is a person, indicated as an author on the origin or copy of the composition (presumption of authorship). Database can be created during performance of the work duties or by the errand of the employer. The proprietary rights on the object of copyright and (or) related rights, which was created in connection with performance of the labour contract, belong mutually to the employee, who created such an object and to a legal or natural person, where or who he is working for, if the opposite is not established by a contract (either a labour contract or a separate civil contract). The procedure of performing the proprietary rights on such a database can be regulated by the corresponding contracts. The provisions of the TRIPS, EU Directive on legal protection of databases are analyzed. It is established that original databases are protected as the objects of copyright with the recognition of the corresponding non-property and proprietary rights of its author. Non-original databases are protected by exclusive rights – sui generis. Exclusive rights are guaranteed to the creator of a database irrespective of the eligibility of that database for the protection by copyright or by other rights. Thereby, the Directive permits the protection of a database not only by copyright, but by the sui generis right as well. Consequently, the sui generis right can be spread on the original database, which is an object of copyright. The legislation of Ukraine does not provide the sui generis right to non-original databases for the present. Corresponding provisions are proposed in the draft «On the Copyright and Related Rights». It is proposed to establish personal non-property rights, to define the contents of a proprietary right of the non-original database creator more accurately, determine possible cases of such databases free usage in educational, studying purposes without the aim of commercial usage.

A COMPARATIVE OVERVIEW OF DATABASE MANUFACTURERS’ PROTECTION OF RIGHTS IN THE CROATIAN AND SERBIAN LAWS

This paper analyzes the right of a database manufacturer which is the exclusive right that authorizes its holder to prohibit or permit another to use a particular database, i.e. the collection of regulated and systematized data, copyright works or other materials that are available electronically or otherwise. However, the database can be a collection in terms of the copyright of the collection, so it also represents the content of the analysis in this paper. The subject of comparative analysis are the provisions of the current regulations in the Republic of Croatia and the Republic of Serbia, and determining their compliance with the Directive 96/9/EC on the legal protection of databases. The analysis used a historical legal and normative legal method. Based on the analysis, the authors point out that the adopted solutions for the protection of databases in the EU greatly influenced the adoption of the corresponding regulations in the Republic of Serbia, concluding that the regulations governing this area in the Republic of Serbia are almost completely aligned with the EU regulations.

The Right of Ownership for Information and Legal Protection of Databases

The Right of Ownership for Information and Legal Protection of Databases

Database authorship and ownership of sui generis database rights in data-driven research

ABSTRACTThe research objective of the article is to analyse the rules on authorship and joint authorship of databases, as well as the ownership and joint ownership of database makers’ sui generis rights as provided for in the Directive 96/9/EC on the legal protection of databases (DD) and its selected national implementations, and to identify the underlying problems and discuss solutions how to overcome them contractually. In order to achieve this objective, an analysis of the black-letter law and case law is provided in the second section of the paper. The DD, however, does not provide much guidance when it comes to defining the author (or joint authors) and owner (or joint owners) and leaves a lot of leeway to Member States, as is further analysed in the third section. In the fourth section of the paper, the focus turns to issues of applicable law that determine the author(s) and rights owner(s) in cases where the protectable subject matter was created/produced jointly by multiple entities from various jurisdictions. In the final fifth section of the paper, the appropriate contractual arrangements of jointly owned rights are presented as a possible solution to the legal uncertainty raised by the current black-letter law.

Perspectives on Legal Protection of Databases in the EU and the Czech Republic

This article is aimed at analyzing the legal framework for the protection of databases in the EU and the Czech Republic with special regard to “sui generis” protection, primarily taking into account relevant provisions of the Database Directive, that still maps EU database law despite the unsatisfactory effects of “sui generis” protection in practice. Above all, the problem of the accessibility of databases to the public is addressed, viewing this critical issue within the context of relevant precedential judgements of the CJEU on the British Horse racing Board, Fixtures Marketing and in particular, the Ryanair case. Perspectives and regulation options for future prospects and the workings of both copyright and “sui generis” protection of databases are outlined, above all in order to avoid the contractual locking-up of unprotected non-original databases.

Use of Dedicated Meta-Search Engine Infringes Database Right: The CJEU's Stance in Innoweb v. Wegener

The Court of Justice of the European Union (CJEU) released an important decision concerning the sui generis right under Article 7 of the Directive 96/9 on the legal protection of databases. The court held that an internet operator that provides a dedicated meta-search engine (which in turn uses search engines provided by other websites to retrieve results) re-uses the whole or a substantial part of the contents of a database and therefore commits infringement, if such engine: (i) provides the end user with a search form which substantially has the same functionality as the search form on the target website; (ii) enables a search of the whole database in the target website and (iii) presents the elaborated results in a way which is comparable to that of the target website.

Use of dedicated meta-search engine infringes database right: the CJEU's stance in Innoweb v Wegener

The Court of Justice of the European Union (CJEU) released an important decision concerning the sui generis right under Article 7 of the Directive 96/9 on the legal protection of databases. The court held that an internet operator that provides a dedicated meta-search engine (which in turn uses search engines provided by other websites to retrieve results) re-uses the whole or a substantial part of the contents of a database and therefore commits infringement, if such engine: (i) provides the end user with a search form which substantially has the same functionality as the search form on the target website; (ii) enables a search of the whole database in the target website and (iii) presents the elaborated results in a way which is comparable to that of the target website.

Hyperlinks citations, reproducing original works

A hyperlink (or simply a link) is a citation of an electronic address where further information can be found but, additionally, navigates the surfer almost instantaneously to material hosted anywhere on the Internet at a mere click of a mouse. Controversy arises because either the composition or functionality of the hyperlink can potentially infringe property rights of the claimant. Many have written about the hyperlink as a navigation tool authorising or contributing to infringement of copyright by a third party. 1 1 See Athanasekou, Eve, Internet and Copyright: An Introduction to Caching, Linking and Framing, [1998] (2) Journal of Information Law and Technology; Deveci, Hasan, Hyperlinks oscillating at the crossroads, [2004] 10(4) Computer and Telecommunications Law Review, 82–94; McRobert, Andrew and Pendleton, Michael, Browsing, Caching, Downloading & Linking Websites, at http://nswscl.org.au/journal/41/browsing.html. This article concentrates on the composition of an external hyperlink, as a citation. Part 2 outlines the nature of Internet communication and explains why hyperlinks are often controversial. Part 3 asserts when copyright subsists in original literary works, but because a hyperlink may incorporate diverse formats, this part also addresses the protection of other works including the issue of composite works covered under section 1(1) of Copyright, Design and Patents Act, 1988. Applying copyright principles, it suggests that a hyperlink reproducing an identifiable part of a web page capable of standing apart from its context can infringe copyright in the web page containing the part. That said the claimant might face difficulty in demonstrating that the work is substantive or, where the hyperlink consists of diverse inputs, in categorising the subject matter. Part 4 acknowledges the significance (electronic) collections and therefore defines a database falling within the Databases Directive. 2 2 (Databases) Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases. It then highlights challenges presented by copyright and sui generis right relating to databases concluding that reproducing an identifiable part of author compiled work can infringe copyright and/or sui generis right therein but the same is not true of search engine generated returns. Part 5 concedes that, in practice, subsistence of copyright and/or sui generis right is open to challenge because the part reproduced in a hyperlink may not be substantive, may not easily fit into the category of protected subject matter or lacks ‘substantial investment.’ Nevertheless, it argues that proving infringement in an identifiable part of a web page reproduced in a hyperlink remains the most viable option for indirectly controlling access to the target page, which may itself be unprotected by copyright.

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

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.

The ECJ Interprets the Notion of Extraction in Article 7 of the Database Directive

The Court of Justice of the European Union interprets the notion of extraction in article 7 of Directive 96/9/EC on the legal protection of databases. This article (in Swedish) elaborates on the findings of the Court.

The revival of European database right?

Some four years on from the European Court of Justice's (ECJ) ruling in the British Horseracing Board (BHB) and Fixtures Marketing cases, the ECJ is poised once again to look at database right. This so-called sui generis right was created just over ten years ago through the implementation of the 1996 European Directive on legal protection of databases, but many thought that the BHB and Fixtures Marketing cases had led to its early demise. It is fair to say that, in the UK at least, there have been few signs of any resurgence in recent years, other than in the odd case in the employment law context, where the strength and ambit of the right cannot be considered to have been seriously assessed.1 Database makers and owners in the database marketing sector will therefore be interested to learn of some recent indications that the right might be stronger in some respects than practitioners had thought. Advocate General Sharpston has delivered an opinion on the Directmedia Publishing v Albert-Ludwigs-Universität Freiburg case,2 to be heard before the ECJ, which suggests that the infringing act of ‘extraction’ should be interpreted broadly. The issues that will be considered by the European Court, the Advocate General's views and the potential implications for database marketers are analysed below.

The Legal Protection of Databases: a Study of Jordanian Law

This article deals with the legal protection of databases under Jordanian law. Section 1, on protection afforded under international conventions and agreements, discusses four international conventions: i.e., the Berne Convention for the Protection of Literary and Artistic Works, Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement, World Intellectual Property Organization Copyright Treaty (WCT) and Arab Convention on Copyright. Section 1.1. discusses the legal base in Jordan for such protection under international conventions. According to Jordanian law and court practice, international conventions to which Jordan is party have supremacy over the provisions of local law. In Section 1.2., the scope of protection, including exceptions and limitations, is discussed. Databases are protected under these conventions if the selection and arrangement of their content can be shown to be intellectual property. Section 1.3. is devoted to the remedies these conventions offer. It is shown that the TRIPS Agreement includes detailed provisions that afford administrative, precautionary, as well as civil and criminal protection to authors of databases. Section 2.1., on protection under Jordanian law, shows that Jordanian Copyright Law (JCL) provides a legal base for protection of databases in its provisions, as discussed in Section 1.1. The scope of protection, including exceptions and limitations, is presented in Section 2.2. In addition to protecting the author's traditional rights to the database created, JCL has introduced legal measures to protect the technology used to prevent illegal access to databases. Section 2.3. discusses the remedies afforded under local law, i.e., administrative, precautionary measures as well as civil and criminal protection. Also, Jordanian courts have upheld such protection in all areas. Thus, one may conclude that databases are protected under the Jordanian legal system to the same degree upheld in the TRIPS Agreement and in compliance with international standard.

DeCODE Iceland and Genetic Databanks: Where 'Consent' to Genetic Research Means Patenting a Nation's Genes

AbstractThe paper describes the Icelandic Health Sector Database and the issue of informed consent to the use of genetic personal data. Genetic homogeneity of Iceland and the concept of community consent to the processing of personal data are discussed. The rules of the European Directive for the legal protection of databases are explained. deCODE, the company, which is the licensee of the database, also has filed for a big number of gene patents, which perhaps serve different purposes from what the Icelandic people has been told. Finally, the paper presents some ideas on the future of very expensive genetic data research in terms of efficiency in finding cures and drugs. IntroductionThe paper describes the deal of deCODE with the Icelandic government on the nationOs genetic data and research and then examines the question of IcelandOs genetic homogeneity. It explores the controversial issue of the IcelanderOs assumed/presumed consent to the use of their data and the question of community consent. Patents granted to deCODE or filed and pending in its name are analyzed and in the end the paper closes with a question whether such deals as deCODEOs with the Icelandic government can be justified in the name of medicine and benefits to humanity.

Electronic databases: Protecting your investment – An analysis of the legal rights in electronic databases under UK law

Electronic databases are an important part of the information economy. They are now one of the key platforms for the distribution of information and other contents. The European Court of Justice, in November 2004, gave its first rulings on the scope of database right, introduced by Directive 96/9/EC on the legal protection of databases. These rulings significantly curtail the scope of that right, and limit the protection afforded to database producers under that Directive. The UK courts, in January of last year, handed down a judgment which has important implications for the copyright protection afforded database structures and to “look and feel” elements of database application software, and the scope of Section 50D of the Copyright, Designs and Patents Act 1988 (which sets out certain statutory permitted acts in relation to database use). This article looks at the implications of these judgments, it analyses some of the key legal rights that can apply to electronic databases, and the increased importance that rights of confidentiality and contract are likely to have on the commercialisation of electronic databases in light of these rulings.

Legal protection of databases: A wider transatlantic divide?

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.

Legal update: Legal protection for databases in Europe: The vexed question of whether US businesses can benefit

Databases created in the USA have less legal protection than those made in Europe. This is because in Europe, or more accurately, the European Economic Area (EEA), many databases will benefit from legal protection conferred by database right. This is a relatively new intellectual property right which has been enacted by individual member states pursuant to the 1996 European Directive on the legal protection of databases (96/9/EC, ‘the Directive’). It aims to protect the investment in obtaining, verifying and presenting the contents of a database. The holder of database right can prevent the unauthorised extraction and re-utilisation of the contents of the database. Database right thus provides an extra level of legal protection over and above any copyright or patent protection in the database or its contents. Increasingly, computer systems and databases around the world are being integrated via high-speed networks to provide on demand access to data-crunching capabilities and access to large numbers of external databases and functions not available to one individual or group of machines. Such ‘group’ systems use shared languages and protocols to allow them to interact with computing resources, such as databases, from all over the world. Fields in which such systems are currently being used to share database information include bioinformatics, integration and analysis of biomedical data; climate modelling and environmental science; fusion research, integration and analysis of astronomical data; and earthquake engineering research. In the context of this global sharing of database information, which will often involve companies creating databases through international collaboration, an important question is: can US businesses obtain the benefit of database right protection for databases they create in Europe? This paper considers and attempts to answer this question.

Legal Protection of Databases: Feist v. Rural Telephone Service

The rapid development of database software and information- gathering techniques has led to a reassessment of the traditional concepts of intellectual property law. Advanced technology has changed our methods of gathering, distributing, and retrieving news, research materials, and even telephone numbers. Databases are often provided at little or no cost on the Internet in real time. They provide accurate access to telephone books, dictionary definitions, driving directions, news, sports scores, stock quotations and many sources of information from all over the world. Databases are an expanding multi-billion dollar industry in the United States.

The Quest for Legal Protection of Databases in the Digital Age

The Quest for Legal Protection of Databases in the Digital Age