Sui Generis database right: ripe for review?

Colston, C. (2001) Sui Generis database right: ripe for review? Journal of Information, Law and Technology, 2001 (3). ISSN 1361-4169

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In a digital era unoriginal collections of data, particularly those in electronic form, have new significance and value. Digital technology also renders such collections of information uniquely vulnerable to copying. The Directive on the legal protection of databases created a new sui generis right for databases in which there has been (qualitatively or quantitatively) substantial investment in obtaining, verifying or presenting the contents against unauthorised extraction or re-use of the whole or a substantial part. However, over-protection of such databases may remove essential information from the public domain, particularly where it constitutes an exclusive source. Under protection may be equally damaging, if the incentive to collate information is undermined by free-riding competition. It is as necessary, therefore, to strike as careful a balance of protection for unoriginal databases as for other intellectual property rights. The case of British Horseracing Board Limited v William Hill Organisation (2001) confirms infinitely extendable protection for dynamic databases, and their contents. The information at issue lay within the public domain, however the database maker constituted its only effective source. Fears of inhibiting information flow have contributed to debate over database protection in the United States, where copyright and unfair competition provide a lesser degree of support to database makers. Consequently, whether the new right encourages investment in creating databases as well as allowing access to database-stored information, is questionable. The question is timely for the Directive is due for review. At the same time both WIPO and the US are debating new provisions, and the Court of Appeal has referred questions of interpretation of the Directive to the European Court of Justice. It is time to reconsider, in particular, the draft Directive's proposed compulsory licences for the sui generis right. Alternatively, the exceptions to infringement could be better adapted to allow for private uses of information, or a better solution might lie in a form of unfair competition law restricted to parasitic conduct and unjust enrichment, without protection for the underlying information content.