BOX 5.4 The 196 European Directive's Broad Protection for Database Investors

The investor's scope of protection under the hybrid right to prevent extraction appears paradoxically to exceed even that afforded authors of traditional literary and artistic works under the classical copyright paradigm of the Berne Conventionl in at least three important respects. First, the basic idea-expression dichotomy underlying U.S. copyright law2 (which the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) applies universally to all copyrightable works, including such borderline works as computer programs and factual compilations3) doesn’t apply to noncopyrightable databases covered by the sui generis regime. For this and other reasons explained below, in the universe of data generators, there is no public domain substratum from which either research workers or second comes are progressively entitled to withdraw previously generated data4 without seeking licenses that may or may not be granted. On the contrary, every independent generation of data, however mundane or commonplace, will obtain protection if it costs money, and every regeneration or reutilization of the same data in updates, additions, and extensions that cost money will extend that protection without limit as to time.5 As a consequence, third parties wilt rarely be able to avoid the expense of regenerating preexisting data—in the way that they can always use previously generated ideas, however much it cost to develop them—unless the originator of the relevant database has abandoned it, or declined to exercise his or her proprietary rights, much as occurs under trademark laws, 6 To be sure, data providers (including, where feasible, members of the scientific community) could decide not to exercise proprietary rights in certain databases, for example, those funded by government agencies; but this would not change the legal situation with respect to scientifically important data located in privately owned databases or in those funded by public agencies, especially foreign agencies, that had opted to commercialize their data. The absence of any equivalent of the idea-expression doctrine under the new sui generis regime means that investors, in effect, obtain proprietary rights in data


See, e.g., Reichman, “Collapse of the Patent-Copyright Dichotomy,” note 8 in text, at pp. 485-86, 492-96; see also Sam Ricketson (1987), The Berne Convention for the Protection of Literary and Artistic Works ; 1886-1986, Queen Mary College, at pp. 231-32.

  • 2  

    See 17U.S.C. §102(b) (1994); Text accompanying note 16 in text.

  • 3  

    See TRIPS Agreement, note 111 in text, articles 9(2), 10(1); Reichman, “Know-How Gap in TRIPS,” note 120 in text, at pp.775-84.

  • 4  

    Cf. Jaszi, note 15 in text, at p. 596; Litman, “Public Domain,” note 9 in text, at p.967.

  • 5  

    See notes 89-90 in text.

  • 6  

    See Lanham Trademark Act, 15 U.S.C. §1052 (1994 ed.). However, there is an infinite array of trademarks, and the use of marks to distinguish quality producers inherently promotes competition without creating legal barriers to entry. See, e.g., Stephen Ladas (1975), Patents, Trademarks, and Related Rights, Harvard University Press; William M. Landes and Richard Posner (1987), “Trademark Law: An Economic Perspective,: J.L. Econ., 30:265.

  • 7  

    Executive Office of the President, Office of Management and Budget, “Implementing the Information Dissemination Provisions of the Paperwork Reduction Act of 1995,” Memorandum by Alice M. Rivlin, September 22.

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