Database Protection in Europe — Recent Developments and Modest Proposal

Data Science Journal, Volume 6, Open Data Issue, 17 June 2007 DATABASE PROTECTION IN EUROPE – RECENT DEVELOPMENTS AND A MODEST PROPOSAL Robert Clark School of Law, University College Dublin, Ireland, also, of Counsel, Arthur Cox, Dublin and London. Email: ; The author thanks Ms Natalia Zadorozhnyaya for assisting in researching this paper. ABSTRACT The controversial provisions in the European Union’s Database Directive have created considerable uncertainty for commercial producers of databases, while recent case law has emasculated much of the Directive. However, researchers and academics must still work in a restrictive copyright environment within Europe. This paper reviews the Directive in the light of two recent UK reports that suggest a more liberal copyright regime is both culturally and economically desirable. The author suggests that unfair competition problems should be addressed by new unfair competition laws for Ireland and the UK and not through revision of the Directive. Keywords: Copyright, Database protection, Europe, Research, Innovation, Unfair competition 1 INTRODUCTION The 1996 Database Directive 1 was initially sold to Europeans as an innovative measure, one that would stimulate the European database industry, an industry that was seen even by the European Commission as lagging behind other competitors, particularly the USA2. The twin track approach to protection, providing a “harmonised” copyright for the makers of an original database, while at the same time providing a separate sui generis (of its own kind) right in respect of the unauthorised extraction and/or reutilisation of the contents of the database, provided a measure of cohesion for the European information industry. However, it did not take long for flaws in the Directive to emerge3. These include: z vague and at times confusing drafting and language4; z confusion about where the boundary between the two rights lies5; z uncertainty over the duration of the sui generis right6; 1 Adopted on 11 March 1996; 96/9/EC; OJL77, 27.3.1996. For an early critique see Hicks, Copyright and Computer Databases [1993] EIPR 113. 2 See the Explanatory Memorandum to the first draft of the proposed directive – COM (92) 24 final – SYN393 Brussels, 13 May 1992, paragraphs 1.2 and 2.1.1. 3 See generally the discussion in Davison, Mark J., The Legal Protection of Databases (Cambridge) 2003 Ch. 3 (hereafter Davison). For a U.S. perspective, see Reichman, J.H. and Uhlir, P.F., Database Protection at the Crossroads [1999], 14 Berkeley Technology Law Journal, available at http://www.law.berkeley.edu/journals/btlj/articles/vol14/Reichman/html/reader.html. 4 E.g., the (over)broad definition of database (Davison, p. 71) and the meaning of “obtaining, verification and presentation” in article 7, problems not entirely dispelled by the William Hill/Fixtures Marketing judgements: see Davison and Hugenholtz, Football Fixtures, horse races and spin-offs: the E.C.J. domesticates the database right [2005] EIPR 113. 5 Davison at p.81; Kay, The Proposed EU Directive for the Legal Protection of Databases [1995] EIPR 583. 6 Smith, Legal Protection of Factual Compilations and Databases in England – how will the Database Directive change the law in this area? [1997] IPQ450; Chalton, The Copyright and Rights in Databases Regulations 1997 [1998] EIPR 178. OD12 Data Science Journal, Volume 6, Open Data Issue, 17 June 2007 2 z the definition of ‘substantial investment’ for the sui generis right7; z concern over the narrowness of the exceptions to the sui generis right8; z the anti-innovative, anti-intellectual and anti-competitive dimensions of the Directive9; and z the fact that a harmonisation measure gave EU member states too much choice on policy issues, resulting in some senses in less harmonisation after member states had completed the transposition process10. IMPLEMENTATION OF THE E.U. DATABASE DIRECTIVE IN NATIONAL LAW As a harmonisation measure the Directive had to come up with language that could be acceptable to 15 member States with different legal traditions. However, as Davison has demonstrated, the Directive that was the subject of the initial proposal, and the finished product, were very different creatures in a number of respects11. The copyright in the compilation itself was subjected to a higher standard of originality, one that was much more difficult to reconcile with the ‘sweat of the brow’ test found in most common law jurisdictions. In relation to copyright and the originality test, the two common law jurisdictions, Ireland and the UK, had very high levels of protection for compilations because the test for originality was easy to meet. As long as a collection was not copied from elsewhere, precious little innovation was necessary. Street directories, television listings, alpha-numerical phone books were all protected; “It has long been held in the field of literary copyright that, in order to secure protection, it is not necessary that there should be any literary merit at all. If you work hard enough, walking down the streets taking down the names of people who live at houses and make a street directory as a result of that labour, this has been held to be an exercise sufficient to justify you in making a claim to copyright in the work which you ultimately produce.” Whitford J. in J.C. Gleeson v H.R. Denne12 (1975). UK and Irish law reflected a unitary system of protection for compilations. If X produced a compilation, the compilation was protected by copyright. That protection was “thin”, however. Fact-based collections were difficult to establish as original and even where there was the exercise of skill or judgement (e.g., William Hazlitt’s best 13 essays) another literary critic could produce a similar work or result without infringing copyright by slight re-arrangements, additions or deletions (Cambridge U.P. Case13 (1928)). Also, the contents 7 Contrast Davison at 83-84 with the outcomes of the ECJ decisions in William Hill/Fixtures Marketing [2005] ECDR 1, 2, 3 and 4. 8 Davison at p. 91-92 makes the point that for the copyright provisions the exceptions are narrow because of the higher originality standard, reflecting a Civil Law rather than Common Law perspective and these ‘flaws’ have been carried over in an even more restrictive way for the sui generis right. 9 See generally Davison, Ch. 7 and Reichman and Samuelson Intellectual Property Rights in Data? (1997) 50 Vanderbilt Law Review 51. 10 See Gaster, The EC Sui Generis right revisited after 2 Years [2000] Comms. Law 87; Davison, Ch. 4 sets out the transposition pattern within EU states. On the UK see also Chalton, Implementation in the UK of EC Directive 96/9 on the Legal Protection of Databases [2000] Comms. Law 79. 11 Not least the movement away from an unfair competition model underpinning the sui generis right to a quasicopyright model in the final version of the Directive, a shift that proved disastrous (...truncated)