Academic journal article Santa Clara High Technology Law Journal

Wikipedia and the European Union Database Directive

Academic journal article Santa Clara High Technology Law Journal

Wikipedia and the European Union Database Directive

Article excerpt

INTRODUCTION

Because of their interactive and largely non-commercial nature, Web 2.0 technologies raise new challenges for intellectual property laws on a global level. Web 2.0 forums are characterized by their interactive and participatory nature. (1) They include blogs, wikis, multiplayer online games, and online social networks ("OSNs") like Facebook and MySpace. Web 2.0 participants--such as bloggers, online gamers, and participants in OSNs--are often motivated by a shared community spirit rather than by commercial profit motives. For example, gamers are interested in the games they are playing and perhaps in building networks of fellow gamers. Bloggers are interested in building expressive communities, often based on particular issues that may be the subject of the blog; for example, a number of law professors now engage in blogs focusing on intellectual property matters. (2) Participants in wikis share similar interests--those of collecting ideas and information with a particular goal. Wikipedia, the focus of this article, is a wiki that aims to be a comprehensive, free global online encyclopedia. (3)

Intellectual property law--especially copyright and trademark law--has struggled to keep pace with the new technologies. Courts and commentators have been grappling with the application of traditional intellectual property principles to new online forums, such as sophisticated search engines, (4) online fan fiction, and blogs. (5) However, most of the recent discourse has focused on copyright and trademark doctrines. (6) Little attention has been paid to the potential implications of the European Union Database Directive ("Database Directive" or "Directive") (7) and the sui generis "database right" it creates8 on Web 2.0 technologies. This article aims to fill this current gap in the recent discourse by presenting a case study examining the ways in which the Directive may apply to Wikipedia--a prime example of a global, highly interactive Web 2.0 online forum. While the discussion is specific to Wikipedia, it does raise considerations that may be of concern to other global online Web 2.0 forums.

Part I of this article sets out the structure and scope of the Database Directive, and addresses some of the limitations inherent in its provisions when applied to Web 2.0 technologies. Part II examines ways in which the Directive's provisions may impact Wikipedia's online activities. It makes some reference to Wikipedia's own intellectual property policies which are drafted predominantly in terms of copyrights, and which make no specific reference to the Directive. This Part focuses on jurisdictional issues, and on ways in which the Directive may apply to information gathered by Wikipedia contributors as well as information disseminated via Wikipedia. Part III focuses in a little more detail on some of the unanswered questions arising in Part II, specifically the jurisdictional issues and collective ownership issues. Part IV concludes and makes some comments about questions that need to be resolved in the future when considering the application of the Directive to Web 2.0 technologies.

I. A PRIMER ON THE EUROPEAN UNION DATABASE DIRECTIVE

A. Intellectual Property Rights in Compilations of Information

The European Union Database Directive was adopted in 1996. (9) Its aim was to harmonize the law amongst European Union Member States relating to intellectual property protections granted to databases and compilations of information. (10) Prior to the implementation of the Directive, different European Union countries maintained varying levels of protection for compilations and databases. (11) Some Member States, such as the United Kingdom, protected some compilations and databases through copyright law, despite originality concerns.12 Others were less prepared to extend copyright protection to non-original databases. (13) Additionally, some Member States had specific legislation aimed at non-original databases. …

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