Vol 7 No 1 - Roger Williams University School of Law

copyright law.129 The sui generis rights are vested in “a maker ofa database which shows that there has been qualitatively and/orquantitatively a substantial investment” in its creation, and allowthe maker to prevent the extraction and/or re-utilization of thecontents in whole or in any substantial part (evaluatedqualitatively and/or quantitatively).130 Although the initial termof the sui generis right is fifteen years from the date of completionof a database, the EU Directive mandates a new term of protectionfor any database in which the original contents undergosubstantial change, and imposes no obligation to identify whatdata is new and what has ostensibly fallen into the publicdomain.131 The effect of this provision is to create a perpetuallyexclusive right for dynamic databases.132 Also troubling is thatthe EU Directive authorizes but does not require member states tocreate fair use exceptions to the general prohibition.133Two reasons have been given to explain why the EU adopteda sui generis property right rather than a norm of unfaircompetition—(1) the logistical difficulty of harmonizing unfaircompetition laws across the board and (2) a desire to protectdatabases from “information Samaritans” as well as free riders.134Some commentators have observed, however, that the creation of129. Id. at art. 5. The Directive provides:The author of a database shall have the exclusive right to carry out or authorize:(1) temporary or permanent reproduction by any means and in any form, inwhole or in part(2) translation, adaptation, arrangement and any other alteration(3) any form of distribution to the public of the database or copies thereof(4) any communication, display or performance to the public(5) any reproduction, distribution, communication, display or performance tothe public of the results of the acts referred to in (b).Id.130. Id. at art. 7, § 1.131. Id. at art. 10, §§ 1, 2.132. The danger of inadvertently creating perpetual protection for databases in theUnited States was duly noted. See The Collections of Information Antipiracy Act:Hearings on H.R. 354 Before the Subcomm. on Courts and Intellectual Prop. of theComm. on the Judiciary, 106th Cong. (Mar. 19, 1999) (statement of Andrew J. Pincus,General Counsel, United States Department of Commerce) [hereinafter PincusStatement], available at http://www.house.gov/judiciary/106-pinc.htm.133. EU Database Directive, supra note 4, at art. 9; see also supra note 66 andaccompanying text.134. See Michael J. Bastian, supra note 97, at 444; Mark Powell, The EuropeanUnion’s Database Directive: An International Antidote of the Side Effects of Feist?, 20Fordham Int’l L.J. 1215, 1224-25 (1997); Reichman & Samuelson, supra note 85, at 81.