Sui Generis Database Protection 2.0: Judicial and Legislative Reforms

European Intellectual Property Review (EIPR) - Forthcoming

13 Pages Posted: 18 Nov 2021 Last revised: 7 Jan 2022

See all articles by Estelle Derclaye

Estelle Derclaye

University of Nottingham, School of law

Martin Husovec

London School of Economics - Law School

Multiple version iconThere are 2 versions of this paper

Date Written: November 16, 2021

Abstract

The Database Directive confers investment protection (so-called sui generis database protection) on makers of some types of databases. It represents a unique top-down policy experiment of the EU legislature with little national precedent prior to its adoption in 1996. The Directive aimed to encourage investment in the making and improvement of databases in Europe. Its ultimate goal was the development of an EU information market. Two decades later, the results are not very encouraging. The newly created exclusive right did not deliver the intended benefits. The European Commission is therefore keen on reforming the protection in the context of its Data Act in 2022. Coincidentally, in June 2021, the Court of Justice of the European Union issued a seminal judgment, CV Online Latvia v Melons, that significantly alters the scope of the protection. This article looks at the original and persisting criticism of the sui generis database protection, how it is addressed by the Court of Justice of the European Union (CJEU), and what should be done by the European Commission in its upcoming reform. It offers suggestions for how to further develop the sui generis database protection of the second generation.

Keywords: sui generis database right, intellectual property, EU, CJEU, reform, data, protection

JEL Classification: K20

Suggested Citation

Derclaye, Estelle and Husovec, Martin, Sui Generis Database Protection 2.0: Judicial and Legislative Reforms (November 16, 2021). European Intellectual Property Review (EIPR) - Forthcoming, Available at SSRN: https://ssrn.com/abstract=3964943 or http://dx.doi.org/10.2139/ssrn.3964943

Estelle Derclaye

University of Nottingham, School of law ( email )

Nottingham NG7 2RD
United Kingdom

HOME PAGE: http://www.nottingham.ac.uk/law2/staff/estelle.derclaye

Martin Husovec (Contact Author)

London School of Economics - Law School ( email )

Houghton Street
London WC2A 2AE, WC2A 2AE
United Kingdom

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