Abstract
The importance of databases is paramount because technology enables us to access vast amount of information in a systematic manner.
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Notes
- 1.
The Database Directive under Article 1 defines database and it is “a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means”, Council Directive of 1996/9/EC of 27 March 1996 on the legal protection of databases [1996] OJ L 77/20 (Council Directive 96/9/EC).
- 2.
‘DG Internal market and services working paper: First Evaluation of Directive 96/9/EC on the legal protection of databases’ (Commission of the European Communities, 12 December 2005) available at <http://ec.europa.eu/internal_market/copyright/docs/databases/evaluation_report_en.pdf> (accessed 31 October 2016) (First Evaluation of Directive 96/9/EC), para [2.2].
- 3.
ibid.
- 4.
499 US 340 (1991).
- 5.
Council Directive 96/9/EC, Chapter II; According to the Commission, in the member states there was a difference in the standard of originality for copyright protection of databases, Commission, ‘Proposal for a Council Directive on the legal protection of databases’ COM (92) 24 final (COM (92) 24 final), para [2.2.5].
- 6.
Council Directive 96/9/EC, Chapter III.
- 7.
The Database Directive offers protection to both original (Article 3) and non-original (Article 7) databases, First Evaluation of Directive 96/9/EC, para [1.1].
- 8.
The first draft proposal talked about the challenges and the possibilities without concrete evidence of any problems; COM (92) 24 final.
- 9.
COM (92) 24 final, para [2.0].
- 10.
ibid, para [2.1.3].
- 11.
ibid, para [2.1.5].
- 12.
Stopping parasitic behaviour constituting the act of misappropriating the contents of databases by using unfair competition law is present in some member states, which would have done similar sort of function as the database right, ibid, para [3.2.8].
- 13.
“The situation as regards to the legal protection of databases in the member states”, Explanatory memorandum, COM (92) 24 final, para [2.2]; Pointing to the fact that US dominated the database market at the point of the first draft proposal, COM (92) 24 final, para [2.15.1].
- 14.
COM (92) 24 final, para [2.2.5].
- 15.
First Evaluation of Directive 96/9/EC; ‘sweat of the brow’ argument in the context of copyright protection of a compilation points to the labour expended towards its creation.
- 16.
COM (92) 24 final, 28-31.
- 17.
ibid 30.
- 18.
ibid, para [3.1.11].
- 19.
ibid 30.
- 20.
COM (92) 24 final.
- 21.
Infra chapter 3.
- 22.
COM (92) 24 final, para [2.3.3].
- 23.
ibid.
- 24.
ibid.
- 25.
First evaluation of Directive 96/9/EC, para [2.4].
- 26.
ibid, para [1.4].
- 27.
ibid, para [4.2.3].
- 28.
The report stated that the number of European databases were similar to the pre-Directive days. In 2001, there were 4085 EU-based “entries” while in 2004 there were only 3095, First evaluation of Directive 96/9/EC, para [4.2]; Although the European Association of Directory and Database Publishers claimed that there has been an increase in supply of information through databases, there was no empirical evidence or a procedure provided in this regard to quantify or measure information provided through these databases. The report, however, said that care should be taken to conclude on the basis of GDD. It was the best available data at the time of the evaluation, which acts as a guideline, and gives a rough estimate, First evaluation of Directive 96/9/EC, para [4.2.3].
- 29.
First evaluation of Directive 96/9/EC, para [4.4].
- 30.
Feist Publications (n 4); The term ‘database’ includes compilations under the broad definition of database and Article 1 (2) of Council Directive 96/9/EC, states that “‘database’ shall mean a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means”. According to the Recital 13 “this Directive protects collections, sometimes called ‘compilations’, of works, data or other materials which are arranged, stored and accessed by means which include electronic, electromagnetic or electro-optical processes or analogous processes” Council Directive 96/9/EC. The European Court of Justice (ECJ), now known as Court of Justice of the European Union (CJEU), in the case of Case C-444/02 Fixtures Marketing Ltd v Organismos Prognostikon Agnon Podosfairou (OPAP) [2005] ECDR 3 para [37] said that the definition of a database is meant to be broad so as to cover any future electronic and non-electronic form (Organismos).
- 31.
First Evaluation of Directive 96/9/EC, para [1.5].
- 32.
ibid, para [6.2].
- 33.
ibid.
- 34.
Infra chapter 3 and chapter 4.
- 35.
Infra chapter 3.
- 36.
ibid.
- 37.
ibid.
- 38.
Infra chapter 3.
- 39.
Infra chapter 4.
- 40.
COM (92) 24 final, 17.
- 41.
Infra chapter 4.
- 42.
ibid.
- 43.
ibid.
- 44.
Infra chapter 5.
- 45.
ibid.
- 46.
Case C-604/10 Football Dataco Ltd v Yahoo! UK Ltd [2012] ECDR 10, 194 (Football Dataco); Football Dataco Ltd v Brittens Pools Ltd [2010] EWHC 841 (Ch) Sections 83-90 (Football Dataco 2); Football Dataco Ltd v Yahoo! UK Ltd [2010] EWCA Civ 1380, [2011] ECDR 9; CJEU was previously known as the European Court of Justice (ECJ). In this book, both the names have been referred depending on the time of a particular opinion expressed in relation to a particular case.
- 47.
Football Dataco (n 46).
- 48.
ibid, s 3.2.
- 49.
[2010] EWCA Civ 1380.
- 50.
As predicted by the evaluation report, First Evaluation of Directive 96/9/EC, para [1.5].
- 51.
Infra chapter 5.
- 52.
ibid.
- 53.
Infra chapter 5.
- 54.
ibid.
- 55.
ibid.
- 56.
Infra chapter 6.
- 57.
ibid.
- 58.
Critiques have been concerned about the overall balance between the requirement for the producer and the final version of the database right. Mark J Davison, The legal protection of databases (Cambridge University Press Cambridge 2003); Annemarie Beunen, Protection for databases: The European Database Directive and its effects in Netherlands, France and United Kingdom (Wolf Legal Publishers Leiden 2007); over-protection of certain areas in the database right with the fear of monopolization for single-sourced databases, Estelle Derclaye, The Legal Protection of Databases: A Comparative Analysis (Edward Elgar, Northampton 2008); question of giving property rights to data, Jerome H Reichman and Pamela Samuelson, ‘Intellectual Property Rights in data?’ (1997) 50(1) V and L Rev 51; about the problems concerning single-sourced databases, P Bernt Hugenholtz, ‘Abuse of Database Right: Sole-source information banks under the EU Database Directive’ in F. Lévêque & H. Shelanski (eds.), Antitrust, patents and copyright: EU and US perspectives (Edward Elgar Cheltenham 2005) 203-217.
- 59.
Case C-203/02 The British Horseracing Board Limited v William Hill Organisation Ltd [2005] ECDR 1; Article 16(3) states the requirement of checking the anti-competitive effect of the database right, Council Directive 96/9/EC.
- 60.
There is uncertainty in claiming database right for databases and is noticeable in the recent case of Forensic Telecommunications Services Limited v The Chief Constable of West Yorkshire Police and others [2011] EWHC 2892 (Ch); [2012] 15 FSR 428 where the claim was not based on database right, instead it was based on database copyright.
- 61.
Infra Conclusion.
- 62.
Infra Chapter 7.
- 63.
ibid.
- 64.
First Evaluation of Directive 96/9/EC, para [1.5].
- 65.
ibid, para [6.1].
- 66.
ibid, para [6.1].
- 67.
Infra Conclusion.
- 68.
ibid.
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Gupta, I. (2017). Introduction. In: Footprints of Feist in European Database Directive. Springer, Singapore. https://doi.org/10.1007/978-981-10-3981-2_1
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