Reform of Existing Database Legislation and Future Database Legislation Strategies: Towards a Better Balance in the Database Law

By Tian, Yijun | Rutgers Computer & Technology Law Journal, Winter 2005 | Go to article overview

Reform of Existing Database Legislation and Future Database Legislation Strategies: Towards a Better Balance in the Database Law


Tian, Yijun, Rutgers Computer & Technology Law Journal


1. INTRODUCTION

With the dramatic development of information technology, the Internet has become a major source for the dissemination of intellectual property. In recent years, the development of digital technology has greatly enhanced the development of the electronic database industry. (1) More and more database producers (or information service providers) have started to run businesses and directly benefit from the commercial exploitations of the databases they have developed. (2)

Ever-improving technology enables users to efficiently access and sort through vast quantities of data by selecting proper databases and search parameters, (3) but it also facilitates data piracy. (4) Database producers often face the risk of unauthorized parties gaining access to, misappropriating and/or disseminating the contents of their databases without financial compensation. (5) Furthermore, current intellectual property law and other relevant legislation may not adequately protect the commercial needs of database producers. (6) Thus, there is pressure on legislatures worldwide to enact new legislation to create sui generis rights to protect the contents of valuable databases. (7)

In Europe, the EU Database Directive has established a sui generis protection for database contents. (8) However, in the United States, debates in Congress still continue on numerous sui generis database protection bills that have been proposed. (9) At the international level, a draft database treaty proposal was submitted to the World Intellectual Property Organization (WIPO) diplomatic conference in Geneva in December, 1996. (10) Although the proposal was circulated for discussion, it was not debated. The WIPO is most likely waiting for the United States's position on the proposed treaty's details. (11)

This article will first examine database protection provisions in traditional copyright law at both the international and domestic levels (especially focusing on U.S. copyright law). It will identify the impact of digital technology on database industries, the limits of current copyright law, and explain why sui generis legal protection of databases is necessary. Then, the article will examine the development of sui generis database protection legislation in the world, focusing, in particular, on the legislation in the EU and the United States. After that, the article will explore some specific problems of current sui generis database protection legislation in both the EU Database Directive and the U.S. bills, and make some specific legal suggestions for each. Finally, going beyond making suggestions for solving the specific legal problems, the author will provide some suggestions for the United States and other nations at the strategic level. This article argues that the interest of a nation is only best served by tailoring its intellectual property regimes to its particular economic and social circumstances. It also argues for establishing a new rationale for international digital legislation: the leadership of digital legislation should always belong to the country that makes the best law rather than the country that made the law first.

2. TRADITIONAL COPYRIGHT LAW ON DATABASE PROTECTION & NEEDS FOR SUI GENERIS DATABASE LEGISLATION

2.1. Database Protection in the Existing International Intellectual Property/Copyright Treaties

Databases have been of concern in the international arena for many years. Major international treaties relating to copyright protection have included provisions for protecting databases, such as the Berne Convention for the Protection of Literary and Artistic Works ("Berne Convention"), the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), and the WIPO Copyright Treaty (WCT). But the protections under these treaties seem very narrow and far from perfect; none of them has provided enough protection to unoriginal databases. (In the terminology of copyright, a database is often referred to as a "collection" or "compilation. …

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