The Legal Protection of Databases: A Comparative Analysis

A fair deal for the new data model

This book has a wide-ranging appeal for all lawyers, students and those in the public and private sectors who are now covered by the rules concerning all aspects of data usage. Estelle Derclaye?s aim is to examine and compare the several types of protection available for what she calls the ?investment in database creation? because there is still no recognised international harmonization between the major players.

Many will know, as professionals or learners that in some jurisdictions there are laws which over-protect database contents, whilst in others there is under-protection. So, Derclaye sets out her comparative analysis with an introduction, ten chapters, and a conclusion plus an excellent, extensive and detailed bibliography, an annex stating Directive 96/9/EC and a full index. I went to the conclusion first as this book was based on Derclaye?s doctoral thesis and I wanted to see what her recommendation is. It is a good one!

Estelle Derclaye recommends that Europe should revise the Directive and suggests that the United States, other countries and WIPO or the WTO adopt the model she sets out in chapter 10 declaring that this model is ?a compromise between American misappropriation and the European ?sui generis? right?, and ?is balanced enough and can be enacted?. It is always good with a book like this one to have a solution to offer rather than the usual moaning about the problem, so how does the author get to her conclusion?

The answer is in the structure of a well-thought out and conveniently structured analysis which examines and compares several methods available for the protection of an investment in database creation by means of the four types of law which she has chosen to review: intellectual property; unfair competition; contract, and technological protection measures (TPMs).

The evidence for Derclaye?s conclusions comes from the use of criteria based on a combination of the economics of information goods, the human rights to intellectual property (always emotional), and to information (and any public interest) concerning her proposed model which it is suggested can be adopted nationally and internationally.

The way the author arrives at her conclusion is to examine the protection of databases in the European Union (Part 1, chapters 2 to 5) and then the United States (Part 2, chapters 6 to 8). Of direct interest to practitioners is chapter ten on remedies, and its part seven covering the relationship with other laws specifically contract, TPMs and competition law.

Her penultimate conclusion is that ?a carefully crafted ?sui generis? intellectual property right is the best solution to protect investment in making databases both at national and international level? using the suggested model and a revised Directive.

I see no problem with this once the political will is forthcoming- which may be some time away. Derclaye?s debate is timely and her methodology sound as we all look for the best method this century to give public and private databases some form of proper consistent legal protection which is now inevitable and long overdue. I have always been a non-regulation man, but there is a good case here for Derclaye?s database protection model and I hope her suggestions are not in vain!