Comparative Analysis of Copyright Protection of Databases: The Path to Follow
Journal of Intellectual Property Rights, Vol.17, No. 2, March 2012
11 Pages Posted: 20 May 2011 Last revised: 19 Mar 2012
Date Written: 2011
Databases are generally perceived in legal scholarship as static warehouses, storing up valuable facts and information. A database generally refers to an aggregate of information systematically arranged and fixed, either on paper or in any other form such as electronic media. While databases, like telephone directories, are, “compiled out of necessity in the ordinary course of business, the originators of many electronic databases take on the risks and tasks of gathering raw data,” and organizing it through an efficient search engine for easy access to data. More than ever before, information equals economic power for today's business enterprises. With the advent of the E-Commerce in developed nations as well as in India, entire businesses are being built upon it and generating revenue streams from subscriber fees, royalties, or advertising. In order to recover the initial investment of time, money and skill put into it and to avoid parasitic competition, the database manufacturers protect their compilation efforts. Therefore without the ability to restrict access to and use of databases that it compiles, a company is effectively discouraged from participating in the information age. This paper discusses that, traditionally, databases are protected under copyright laws. Advances in information technology enable potential competitors and pirates to engage in market-destructive copying and on top of it the copyright and technology have always been in unfair terms. In many jurisdictions, the required level of originality has been in some state of flux in recent years, particularly in the US and Europe after the Fiest decision, as well as by the introduction of the Database directive the recent trend is to back away from an originality standard based purely on industrious collection, labor and expense, or other forms of sweat of the brow principles. Furthermore the European Database Directive ends up in granting overprotection to the databases via its sui generis rights and granting rights in perpetuity subjected to very meager restrictions, which may block dissemination of information and obstruct its flow into the public domain. Furthermore, this paper also discusses the position in India regarding the databases which is governed by the theory of rewarding investment in labour, time and money coupled with the very low requirement of creativity. The author concludes by adding a few guidelines which may be used developing a new law taking into account the best interests of the private and the public keeping in mind the primary objective of the intellectual property regime is to promote creativity and innovation and also to maintain a vigorous public domain.
Keywords: Database, Copyright Directive, sui generis right, literary work, originality
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