Intellectual Property Quarterly, Issue 1, 2001

Database protection in the European Union and the United States

Neeta Thakur

In this article, the author compares database protection in the European Union and the United States and raises the question, whether the European Database Directive can serve as a global model. She argues that the creation of a stable and a uniform legal protection regime across the globe is essential to ensure and stimulate an effective and productive database market. She has several definitions of databases: her own, the definition implicit in the definition of compilations under United States law and the definition contained in the European Directive. She discusses the extent to which originality is an essential element qualifying for protection and refers in particular to the 1998 judgment of the United States Supreme Court in Feist Publications Incorporated v Rural Telephone Service Company. This case concerned telephone directory material, a common cause of litigation in this field, and laid down principles on the "modicum of creativity" and a "minimum degree of originality in the selection, arrangement or organisation of facts" before the compilations of data can be protected. The author observes that the muddled state of Copyright Law after Feist regarding the protection afforded to databases provides uncertainty as to future challenges to the usurpation of database materials. The European directive on the other hand represents a big breakthrough event in the evolution of database protection worldwide. The author describes the directive, noting especially the main characteristic of the directive, namely, its division of protection into to tiers: copyright and a sui generis right. The directives aims to harmonise the former and create the latter. Among other effects of harmonisation of copyright is the modification of the rule in the United Kingdom and Ireland on the "effort" involved in compiling data: this is roughly the equivalent to the United States doctrine of the "sweat of the brow". The author welcomes the copyright provisions of the directive but warns that they fail to specify the level of creativity needed to merit copyright protection. The author goes on to discuss the distinctive features of the sui generis right and the ways in which it complements and adds to the kind of protection afforded by copyright, as well as special features, important in the digital area, such as the "access right". The directive seems likely to have a salutary balancing effect between public access and protective incentives and to encourage European competitiveness. The author comments on the constraints against introducing a similar system in the United States but remains confident that, the if the lacunae are filled and the ambiguities corrected, the directive may serve as a model for a worldwide regime. [20049]