licenses, see note 55; see also Charles R. McManis (1993), "Intellectual Property Protection and Reverse Engineering of Computer Programs in the United States and European Community," High Tech. L. J., 8:25, 88-96 (concluding that contracts, or at least shrink-wrap licenses, that prohibit reverse engineering are preempted by federal intellectual property law); Julie E. Cohen (1995), "Reverse Engineering and the Rise of Electronic Vigilantism: Intellectual Property Implications of 'Lock-out' Programs," So. Cal. L. Rev., 68:1091. But see Raymond T. Nimmer (Reporter for the Drafting Committee on Uniform Commercial Code, Article 2B (licenses)), U.C.C. Revision: Information A.S.E. in Contracts (April 15, 1996) (arguing that proposed Art. 2B of U.C.C. should make such licenses presumptively valid); Pro-CD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996) (upholding shrink-wrap license concerning electronic database).

122.  

McManis, "Emerging Computer Technology," note 64, at p. 67 (citing authorities); Hamilton, note 59, at pp. 628-29.

123.  

See note 5.

124.  

See Committee of Experts on a Possible Protocol to the Berne Convention, Proposal of the United States of America on Sui Generis Protection of Databases, Geneva, May 22-24, 1996, WIPO doc. BCP/CE/VNI/2-INR/CE/VI/2, May 20, 1996 (hereinafter U.S. Proposal on Databases); see also Mark Powell (1996), "The European Union's Database Directive: An International Antidote to the Side-Effects of Feist," paper presented to the Fourth Fordham Conference. Powell notes that the E.C. Directive will be incorporated into the laws of Norway, Iceland, and Liechtenstein under existing trade agreements with the E.U.; that "the Commission will encourage Central and Eastern European countries to adopt similar legislation" in their Association Agreements; that the E.U.-Turkey Customs Union Decision explicitly obliged Turkey to align its legislation on databases with the Directive; and that its reciprocity clause "will be used by the Commission as a bargaining chip" in dealing with third countries.

125.  

Powell, id.

126.  

See, e.g., Powell, note 124, at pp. 2-3 (objecting that "it is questionable whether an international instrument should be founded on a legal measure with no proven track record and which contains such novel legal concepts ... especially since ... [n]either database makers nor users were satisfied with the compromise reached in the Directive"); see also Pamela Samuelson (1994), "The N.I.I. Intellectual Property Report," Communications of the ACM, 37:17. (finding it "peculiar that the WIPO experts should even consider recommending a treaty on database protection when the idea for such a law is so new and untested").

127.  

See, e.g., Powell, note 124, at p. 16 (stating that the "economic case for the creation of a right to prevent extraction and/or re-utilization of non-original contents by users has never been satisfactorily explained"); see also id., at p. 55 (stressing that an "international treaty, . . . is trickier to modify" than domestic models and suggesting that the Diplomatic Conference should confine itself to a "set of general principles" for legal protection of databases that would be reviewed within a fixed period of time).

128.  

See, e.g., Jens L. Gaster (Principal Administrator, DG XV-E-4, European Commission) (1996), "The New E.U. Directive Concerning the Legal Protection of Data Bases," paper presented to the Fourth Fordham Conference (conceding that "the sui generis right was considerably strengthened during the legislative process" and that attacks on the right to extract even insubstantial parts of a protected database were barely repelled).

129.  

TRIPS Agreement, note I 111, article 71; see also id., articles 68-69. While parties to the Berne Convention remain free to adopt higher copyright standards among themselves (see Berne Convention, note 63, article 20), these arrangements would not become binding on other Berne members in the absence of a unanimous decision. See id., article 27(3). Unless such standards were incorporated into the TRIPS Agreement, parties to a special arrangement under Berne (or related to Berne) would run some risk of having to extend the higher standards to nonsignatory members of the WTO, under the most-favored-nation clause of the TRIPS Agreement. See TRIPS Agreement, note 111, article 4. While applications of Article 4 remain inherently



The National Academies | 500 Fifth St. N.W. | Washington, D.C. 20001
Copyright © National Academy of Sciences. All rights reserved.
Terms of Use and Privacy Statement