IPR on Information and Market Power : Comparing the European and American Protections of Databases

When the database sui generis right (database right) was enacted in 1996, many voices rose to criticise it vehemently. According to some, it would create an unprecedented intellectual property right on information, the latter being traditionally otherwise free, that would lead to monopolies on raw information and give considerable market power to database producers. The recent report issued by the European Commission 10 years later on the status of the database industry in Europe and the United States apparently confirms this thesis as the American database sector is thriving without a similar intellectual property right whilst the European database sector is receding. This would suggest that the situation in the U.S. is ideal, that is, it adequately protects database producers whilst safeguarding consumers' interests. This paper seeks to discover whether these assertions and the Commission report's conclusions actually reflect the reality. If they do, the database right should be abolished and neither the U.S. nor any country should adopt a similar right. To determine whether the database right and alternative American protections actually grant market power to database producers, market power must first be defined (Section 1). Then the situation in Europe can be examined. The database right is scrutinised first (Section 2.1). Thereafter, additional protections that can be used to reinforce the protection of the database right are examined (Section 2.2). A conclusion as to the strength of the right, alone and in combination with other protections, can then be drawn. The situation in the U.S. is then contrasted. As there is still no database right or equivalent intellectual property right there, the main other types of protection which can be used to protect databases are reviewed. This includes misappropriation, contracts and technological measures (Section 3.1). Additional protections are then reviewed (Section 3.2.). The section concludes with whether or not the protections, alone and in combination, grant market power to database producers. The paper's conclusion draws lessons from this analysis as to what should be the adequate legal protection of databases and suggests remedies to the current over- and under-protection of databases in Europe and the U.S