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Challenges to information retrieval - a global solution?

Colston, C. (2002) Challenges to information retrieval - a global solution? International Journal of Law and Information Technology, 10 (3). pp. 294-326. ISSN 0967-0769

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Monopolies over raw information, particularly sole-source information, could have serious implications. The European sui generis database right illustrates the potential for such a monopoly. This paper also seeks to demonstrate that this is also a wider issue. Technology can facilitate almost total access to digitally stored information, but paradoxically the law has been developing a potential to give right owners the capacity to control that access. This is an aspect of both the Digital Millennium Copyright Act and the Copyright in the Information Society Directive. Leaving any 'right' of access to the laws of competition may be an inadequate response to the protection/access conundrum at the heart of copyright law. Three other mechanisms might be employed: compulsory licences, a 'copy-duty', or expanded exceptions to copyright and database right. The current review of the Database Directive by the Commission seems unlikely to reconsider the application of compulsory licences to the right. Modifying the rights' exceptions may better facilitate a carefully tailored balance between protection and justifiable access. This paper suggests a WIPO Information Treaty and Tribunal (incorporating the results of WIPO commissioned studies) to address these issues. It could be a positive and cohesive strategy globally, harmonizing the means of access to information without eroding incentives for collating that data.