This chapter has two main parts. The first part examines the application of existing international copyright agreements to the protection of databases. In the course of that examination, the argument is made that the Member States of the EU may be in breach of their international copyright obligations to accord national treatment and most favoured nation status to other members of relevant international agreements, by not providing the same sui generis protection for foreign databases as that provided to EU databases. This argument is based on the points made in Chapter 3 concerning the overlap between the sui generis right and copyright. The Directive's sui generis protection may be categorised as copyright and, consequently, national treatment must be accorded to all databases, regardless of their geographical origin. In turn, this has implications for the argument that other countries, such as the United States, should provide similar protection in order to obtain reciprocal protection from the EU. If the EU is already obliged to accord national treatment, that argument loses all merit.

The second part of the chapter examines the steps taken to date towards a multilateral treaty that would deal specifically with database protection. It also discusses the myriad of bilateral agreements entered into by the EU with other countries that effectively ‘export’ the sui generis right of the Directive to those countries as part of the acquis communitaire of the EU. The very nature of the discussion concerning databases requires some consideration of these international legal dimensions.

We live in the Age of Information. Information is money. So is time. The economies of the First World are dominated by the creation, manipulation and use of information and the time it takes to do so. These economies do not suffer from a shortage of information; they suffer from the difficulties associated with collecting, organising, accessing, maintaining and presenting it. Databases are designed to help deal with these difficulties. They are collections of information arranged in such a way that one or more items of information within them may be retrieved by any person with access to the collection containing those items. Therefore, databases are big business because they contain important and copious amounts of information and they reduce the time taken to access that information. And where there is big business, the law and lawyers inevitably follow.

But information is more than money and databases are more than big business. Information and databases are critical to science, the legal system itself, education and all those aspects of life that are improved by them. Consequently, there are important issues of social and political policy to be considered in the regulation of access to, and use of, databases. Again, where there are such critical issues at stake, the law has a role to play.

There is an inevitable tension between the commercial and the socio-political role of databases that leads to complexities in developing an appropriate model for their legal protection.

This chapter examines the transposition of the Directive into the domestic laws of the EU Member States. It does so by focusing on the protection of databases in nine of the Member States: Belgium, France, Germany, Ireland, Italy, the Netherlands, Spain, Sweden and the UK. The section below describes the legislation and case law of those countries relating to copyright and unfair competition as they relate to databases and the sui generis right. In order to avoid repetition, only particular features of the transposing legislation that are of note are discussed.

These nine countries were chosen for a number of reasons. First, they represent a broad range of pre- and post-Directive approaches to protection of databases. For example, Ireland and the UK had sweat of the brow copyright protection for databases prior to transposing the Directive. Most other countries did not have such copyright laws but had other schemes in place that conferred at least some protection on the non-original aspects of databases. For example, Sweden had its catalogue laws that influenced the Directive. Germany and other countries had, and still have, unfair competition laws that prevent parasitic copying by a competitor. Second, these nine countries represent the vast majority of the population of the EU and, finally, the vast majority of EU investment in databases and publishing occurs in those countries.

After examining the nine individual countries, the main issues raised by the transposing legislation and related case law are summarised. The chapter begins with three tables.

Mark Davison's book on database protection covers a vital aspect of the digital revolution. Indeed, the whole issue cries out for a place in this series. Databases stand at the juncture between information as such and the expression of literary and artistic ideas. From the first perspective, information appears to be a necessary element in social existence and so arguably it should be freely accessible to all. From the second, the need to provide an incentive for the costly business of assembling large databases argues for an equivalent appropriation to that given to creators and their producers by copyright. Deciding how to structure this crossroads – be it with filter lanes or with stop signs – calls for refined legal engineering. What has been done so far to regulate this space has in considerable degree depended on attitudes towards traffic which were formed in a horsedrawn era. Now, motorised vehicles bearing enormous loads of information bear down and have somehow to be accommodated. Hard-pressed legislators and courts have done what struck them as best, but it is far too early to say whether anything like a reasonable balance has been reached between free flow and controlled access.

It will be some time before we can see whether by and large we are offering stimulants to investment in data accumulation which are what is needed, but not evidently more than that. Mark Davison draws on the experience to date in the United States, the British Commonwealth and the European Union.

There are three basic models for legal protection of databases that can be easily identified.

1. Copyright protection is provided at a low level of originality. Under this model, copyright protection is provided for compilations on the basis that a substantial investment has been made in the compilation. This model presently applies in a number of common law countries such as Australia. The effect is that a database user cannot take a substantial amount of the data contained within the database.

2. Copyright protection is provided if there is some creativity in the selection or arrangement of the database material, coupled with a sui generis right. Copyright prevents the taking of the selection or arrangement. The sui generis right protects the investment in obtaining, verifying and presenting the data within the database. It does so by prohibiting the unauthorised extraction or re-utilisation of a substantial part of the data, conferring exclusive property rights in the data as it exists in the database upon the owner of the database. The Directive contains this model.

3. Copyright protection is provided for the creativity in the selection or arrangement of the database material. No protection is provided for the data contained within the database. At the time of writing, this model operates in the United States. Various bills have been placed before Congress to provide additional protection, but none has been passed as yet. The latest bills have proposed protection for the contents of databases where the database owner can demonstrate that a defendant's actions have materially harmed its primary or related market for the database.

This chapter examines the history of the Directive and its final form. It provides an overview of the official process leading up to the adoption of the Directive, and emphasises its changes in direction from the first EU documentation suggesting separate protection for databases through to the final version. In so doing, it demonstrates the myriad of potential models for sui generis protection. The initial proposals were firmly based on unfair competition principles, while the final version of the Directive draws very heavily upon copyright principles. The chapter also undertakes an analysis of individual provisions of the Directive and examines some of the difficulties associated with their interpretation. Particular emphasis is placed upon the relationship between copyright in the structure of databases and the individual contents of databases on the one hand, and the new sui generis right provided by the Directive on the other. In the course of this analysis, reference is also made to the justifications provided by various organs of the EU for the Directive's approach to particular issues and the various provisions implementing that approach. Finally, the last section of this chapter discusses the provisions of the recently adopted EU Directive 2001/29/EC of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (“the Copyright Directive”). The Copyright Directive contains provisions concerning the prohibition of circumvention of technological protection devices designed to protect copyright material.

The preceding chapters have involved a detailed analysis of the legal position concerning the Directive and American proposals for sui generis protection of databases. Chapter 6 examined the moves by the EU to spread the Directive's model for database protection throughout Europe and to other regions via multilateral and bilateral agreements. This chapter examines some of the justifications for sui generis protection of databases and recommends some key aspects of any future legislation or international agreement that provide sui generis protection of databases.

It does so by firstly looking at the arguments for sui generis protection. Part of this section draws upon the economic justifications for intellectual property regimes as discussed by Posner and Landes. At the same time, the costs of creating intellectual property regimes as identified by Posner and Landes are discussed in the context of databases. In the course of this discussion, this section of the chapter deals with some of the particular problems associated with the economics of information, particularly those associated with treating information as a commodity. It is possible to treat information as a commodity and, in many cases, desirable to do so. The critical issue is determining the nature of that commodity and the nature of the rights that should be given in relation to it. One of the particular difficulties in this area is that information tends to be treated as homogenous when, in fact, it is not. Consequently, different types of databases and different uses of databases need to be treated differently.

This chapter deals with two basic issues. First, it examines the application of American copyright law and the tort of misappropriation, part of the wider law of unfair competition, to databases. The discussion of copyright is relatively straightforward and brief (this is because the American standard of originality was discussed in some detail in Chapter 2). However, the American copyright provisions on circumvention of technological measures are also discussed as they provide a means of obtaining de facto protection for the contents of databases, even in circumstances where the copyright protection for a database is minimal. This section on copyright also deals with the American defence of fair use, because the latest legislative proposals for sui generis protection have included a defence that is analogous to fair use. Consequently, an appreciation of the defence of fair use in copyright is necessary to an understanding of the proposed analogous defence to sui generis claims. In addition, the broad, discretionary defence of fair use needs to be compared with the far more restrictive exceptions contained within the Directive.

The discussion concerning the tort of misappropriation is considerably longer than the treatment of copyright for a number of reasons. It deals with the history of the tort, including its chequered history since its initial acceptance in 1918 by the American Supreme Court, the subsequent judicial reluctance to apply it and the more recent application of it to provide protection separate from that provided by copyright.

INTRODUCTION

The theory of definite descriptions developed by David Hilbert and Paul Bernays has original and revised versions. The original, and most distinctive version (hereafter H-BTDD), received its most explicit statement in the first edition of their treatise on the foundations of mathematics. The account that follows relies primarily on this source. This version of the theory is briefly discussed by Rudolf Carnap, and more fully but informally by G. T. Kneebone and Stephen Kleene (among others). The later theory was Fregeian in spirit, and thus is not distinctive. Moreover, newer versions of the theory (hereafter Neo-HBTDD theories), though more in the spirit of the original theory, converge on but cannot be identified with that species called free definite description theory.

Given its essentially mathematical goal H-BTDD might be thought to be of limited interest outside logic where the canons of reasoning in any discipline are of concern. But caution in this regard is dictated by the fact that there are modifications of H-BTDD where the goal, in part at least, is to provide a treatment of definite descriptions more in keeping with the needs of general philosophy. Moreover, inspired by many of Russell's remarks about (logically proper) names, it is hard to resist to thinking of H-BTDD as a theory of (logically proper) definite descriptions.

Hilbert and Bernays note that it is often convenient to introduce into a piece of mathematical reasoning about a specific mathematical object – for instance, a number, a function or a set – an expression referring to that object by means of some uniquely identifying phrase.