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Derclaye, Estelle --- "Can and should misappropriation also protect databases? A comparative approach" [2007] ELECD 296; in Torremans, Paul (ed), "Copyright Law" (Edward Elgar Publishing, 2007)

Book Title: Copyright Law

Editor(s): Torremans, Paul

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845424879

Section: Chapter 4

Section Title: Can and should misappropriation also protect databases? A comparative approach

Author(s): Derclaye, Estelle

Number of pages: 26

Extract:

4 Can and should misappropriation also
protect databases? A comparative approach
Estelle Derclaye1



Introduction
Article 13 of the Database Directive2 provides that

[t]he Directive shall be without prejudice to provisions concerning in particular . . .
unfair competition. . . .

It therefore allows Member States to protect databases by unfair competi-
tion law in addition to the sui generis right. In other words, database produc-
ers can protect their databases by the sui generis right and unfair competition
simultaneously if their national laws allow it. This chapter aims at discovering
whether this additional protection against unfair competition over-protects
databases and if it does, remedies are suggested. It is concerned only with the
database right, which protects the investment in collecting, verifying or
presenting data, and not copyright, which protects the structure of the data-
base. Over-protection exists when the same subject-matter (here investment in
databases) is protected more than once by similar types of protection at the
same time. I call this type of over-protection `simultaneous over-protection'.3
It is against the intellectual property paradigm that an effort be rewarded
twice. More protection leads to rent-seeking and all the negative effects of
monopolies. Over-protection must therefore be avoided. This chapter exam-
ines the protection of databases against parasitism.4 Unfair competition acts

1 Lecturer in Law, University of Nottingham.
2 Directive 96/9/EC of the European Parliament and of the Council of 11 March
1996 on the legal protection of databases, OJ L77/20, 27.03. ...