Issue 5, 20th Febuary 1996: European Databases
By Sonya Clarke.
[Computing, Law, Science and Technology, SciFi, Sport, The Unexplained, UP]
The cross-over of accountancy firms into law is well under way, with the recent announcements by Price Waterhouse, Arthur Andersen and Ernst & Young of their plans to compete for legal business.
In Barclays Bank plc v RBS Advanta a UK court constructed the UK Trade Marks Act 1994, which implemented the EU Directive harmonising European trade mark laws, to allow the use of trade marks in comparative advertising, providing the use of the marks is in line with honest practices. The Act does not permit unlimited ``knocking-copy.''
The Legal 500 and Law Firms in Europe are now available on the Internet; follow this link to visit the site.
Databases take a considerable amount of time to develop but are inadequately protected by national IP legislation and are easy to access and copy. The Directive has the dual aim of preventing copying to encourage investment, and to protect users' interests. As well as affording databases copyright protection, the Directive will protect the economic investment that is required to compile a database but that is not protected by copyright.
The Directive defines a database as an electronic or paper-based collection of data, works or other material, and the materials necessary for working the collection such as an index or system of presentation. The definition does not apply to computer programs used to make the database, which may be protected under the EC Directive on the Legal Protection of Computer Programs.
The contents of databases will continue to be protected by national copyright law. The Directive gives EC-wide copyright protection to the structure of databases. The creator of a database (or his/her employer) will have automatic right to carry out or authorise the reproduction, processing, translation or distribution of the structure of the database, and to provide services associated with these activities that copyright protection covers.
The Directive also provides exclusive economic protection by outlawing unauthorised extraction or utilisation of the entirety or a substantial part of the database by a third party. This right of the creator of a database is independent of the copyright protection of the structure of the database. Even if that structure does not have copyright protection, these ``sui generis'' rights will apply. Infringement of the rights may occur without any actual physical act of copying, unlike infringement of copyright. This duration of the rights is 15 years and may be renewed when substantial reinvestment occurs.
The protection of the Directive is available within the EC to creators who are EC nationals, or companies and undertakings based in the EC. It may be extended in the future to non-EC countries that reciprocate by giving EC databases a similar level of protection. Following implementation, European protection of databases under the Directive will be much broader than elsewhere. The United States, for example, will only allow copyright protection in factual material if that material is original. The copyright protection of databases in Europe extends to structure, contents (under national law) and is complemented by the sui generis rights. This indicates that the reciprocity provisions of the Directive will be of limited impact unless other jurisdictions advance their own database protection to the same level as Europe. There is a considerable argument for non-discriminatory protection for databases in Europe regardless of origin, but the Directive has not been amended to this effect.
As with other IP rights, a database creator with rights under the Directive cannot use them to
exclude European competition law to the level that consumers are prejudiced and the use of such
rights is abusing a dominant position in the market place.