Vol 7 No 1 - Roger Williams University School of Law
Vol 7 No 1 - Roger Williams University School of Law Vol 7 No 1 - Roger Williams University School of Law
the sui generis right mainly serves its intended purpose to “favorEuropean database publishers at the expense of their customersand non-EU competitors.”135 Others have noted a discrepancybetween the economic arguments justifying the protection ofdatabase contents and the particular solution proposed in theDirective.136 The main reason given for a “copyright plus”approach to database protection is to prevent the potentialdamage caused by the slavish copying by competitors; the“economic case for the creation of a right to prevent extraction andreutilization of unoriginal content by users has never beensatisfactorily explained.”137 Even so, the compromise reached inthe Database Directive has satisfied neither database makers norusers.138 Whereas users would have preferred to see compulsorylicensing provisions incorporated into the Directive, rather thansimply held in reserve by the review clause of Article 16, databasemakers would have liked, among other things, to prevent theextraction and re-utilization of insubstantial amounts of thecontents of databases, if not by law, then by contract.139As of the end of 1998, only nine member states had passednational legislation.140 The Commission of the European Unionwas forced to file complaints in the European Court of Justiceagainst several member states.141 Today, with the exception ofIreland,142 all member states are now in compliance with theDirective.143 However, the Directive has yielded disappointingresults.144 Harmonization of the originality standard for135. See von Simson, supra note 113, at 735.136. Powell, supra note 134, at 1225.137. Id.138. Id. at 1217.139. Id.140. Linn, supra note 96, at Table 1. The nine states were: Austria, Jan. 1, 1998;Belgium, Sept. 1, 1998; Denmark, July 1, 1998; Finland, Apr. 4, 1998; France, June 16,1998; Germany, Jan. 1, 1998; Spain, Apr. 1, 1998; Sweden, Jan. 1, 1998; UnitedKingdom, Jan. 1, 1998.141. Countries with no implementation legislation as of January 1, 1999: Greece,Ireland, Italy, Luxembourg, The Netherlands, Portugal, Iceland, Norway andLiechtenstein. See, e.g., Case C-484/99, Comm’n v. Hellenic Republic (1999) 2000 O.J.(C47/24); Case C-506/99, Comm’n v. Portuguese Republic (1999) 2000 O.J. (C79/13).142. See ECJ C-370/199, Comm’n v. Ireland, 11 January 2001.143. See F.W. Grosheide, Database Protection-The European Way, 8 Wash. U. J.L.& Pol’y (forthcoming) (2002).144. P. Bernt Hugenholtz, Implementing the European Database Directive, inIntellectual Property and Information Law: Essays in Honour of Herman CohenJehoram 194 (Jan C. Kabel & Gerard J.H.M. Mom eds., 1998).
copyright protection has not been achieved. Moreover, in somecountries compilations of data are now subjected to a triplestandard of protection, as countries which previously granted ameasure of protection to mere compilations of data have invokedtheir right under Recital 52 of the Directive to retain exceptionstraditionally specified by such rules.145 Copyright limitationsapplicable to databases continue to vary from country to country,as do, albeit to a lesser degree, the limitations on the sui generisright.C. ReciprocityThe European Database Directive contains a reciprocityprovision that only accords protection to non-resident foreignerswhose home countries have enacted similar legislation.146 Whilethis provision discriminates on the basis on nationality, theDirective was carefully drafted to avoid conflict with the national(i.e., non-discriminatory) treatment provisions of both TRIPS andthe Berne Convention.147 As the United States is now learning,allowing countries with sufficient market power to force suigeneris intellectual property provisions on other countries throughreciprocity provisions creates a dangerous precedent. As recentexperience illustrates, industrialized nations can use reciprocityprovisions to influence the public policy choices of other countries.Further, developing countries lacking sufficient market power toimpose legislation through reciprocity provisions will likely befurther disadvantaged relative to industrialized nations.It has been argued elsewhere that the new, sui generis dataright (like the semiconductor chip design right that preceded it)might fall within the meaning of “industrial property” as used in145. EU Database Directive, supra note 4, at Recital 52.146. Id. at Recital 56, which states:[T]he right to prevent unauthorized extraction and/or re-utilization of adatabase should apply to databases whose makers are nationals or habitualresidents of third countries or to those produced by legal persons notestablished in a Member State, within the meaning of the Treaty, only if suchthird countries offer comparable protection to databases produced bynationals of Member States or persons who have their habitual residence inthe territory of the Community.Id.147. Debra B. Rosler, The European Union’s Proposed Directive for the LegalProtection of Databases: A New Threat to the Free Flow of Information, 10 High Tech.L.J. 105, 137 (1995).
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the sui generis right mainly serves its intended purpose to “favorEuropean database publishers at the expense <strong>of</strong> their customersand non-EU competitors.”135 Others have noted a discrepancybetween the economic arguments justifying the protection <strong>of</strong>database contents and the particular solution proposed in theDirective.136 The main reason given for a “copyright plus”approach to database protection is to prevent the potentialdamage caused by the slavish copying by competitors; the“economic case for the creation <strong>of</strong> a right to prevent extraction andreutilization <strong>of</strong> unoriginal content by users has never beensatisfactorily explained.”137 Even so, the compromise reached inthe Database Directive has satisfied neither database makers norusers.138 Whereas users would have preferred to see compulsorylicensing provisions incorporated into the Directive, rather thansimply held in reserve by the review clause <strong>of</strong> Article 16, databasemakers would have liked, among other things, to prevent theextraction and re-utilization <strong>of</strong> insubstantial amounts <strong>of</strong> thecontents <strong>of</strong> databases, if not by law, then by contract.139As <strong>of</strong> the end <strong>of</strong> 1998, only nine member states had passednational legislation.140 The Commission <strong>of</strong> the European Unionwas forced to file complaints in the European Court <strong>of</strong> Justiceagainst several member states.141 Today, with the exception <strong>of</strong>Ireland,142 all member states are now in compliance with theDirective.143 However, the Directive has yielded disappointingresults.144 Harmonization <strong>of</strong> the originality standard for135. See von Simson, supra note 113, at 735.136. Powell, supra note 134, at 1225.137. Id.138. Id. at 1217.139. Id.140. Linn, supra note 96, at Table 1. The nine states were: Austria, Jan. 1, 1998;Belgium, Sept. 1, 1998; Denmark, July 1, 1998; Finland, Apr. 4, 1998; France, June 16,1998; Germany, Jan. 1, 1998; Spain, Apr. 1, 1998; Sweden, Jan. 1, 1998; UnitedKingdom, Jan. 1, 1998.141. Countries with no implementation legislation as <strong>of</strong> January 1, 1999: Greece,Ireland, Italy, Luxembourg, The Netherlands, Portugal, Iceland, <strong>No</strong>rway andLiechtenstein. See, e.g., Case C-484/99, Comm’n v. Hellenic Republic (1999) 2000 O.J.(C47/24); Case C-506/99, Comm’n v. Portuguese Republic (1999) 2000 O.J. (C79/13).142. See ECJ C-370/199, Comm’n v. Ireland, 11 January 2001.143. See F.W. Grosheide, Database Protection-The European Way, 8 Wash. U. J.L.& Pol’y (forthcoming) (2002).144. P. Bernt Hugenholtz, Implementing the European Database Directive, inIntellectual Property and Information <strong>Law</strong>: Essays in Honour <strong>of</strong> Herman CohenJehoram 194 (Jan C. Kabel & Gerard J.H.M. Mom eds., 1998).
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