Sui Generis Database Legislation: A Critical Analysis
Yale Journal of Law & Technology
Over the last decade, one of the most contentious issues in intellectual property has been the question of statutory protection for databases and compilations. A number of factors had converged during the 1990’s to place this issue on the policy agenda, including court decisions holding that the factual elements within collections of information are not necessarily covered by copyright laws,1 the adoption within the European Union of a Directive on the subject,2 and the continued advances in informational technologies that have made database collections increasingly vulnerable to misappropriation.3 The efforts of proponents of new, or sui generis database protections to enact new legislation in the United States had been unsuccessful in the 104th, 105th, 106th and 108th Congresses,4 and an effort to bring database protections within the ambit of the World Intellectual Property Organization’s (WIPO) system of treaties failed to gain approval at its 1996 diplomatic conference. The continuing efforts of the European Union to place the issue of a new database treaty at the fore of the WIPO agenda through its Standing Committee on Copyright and Related Rights, has been unsuccessful in the face of growing resistance from developing countries.5 In the United States, various efforts to mediate the disparate position of the various stakeholders have been largely unsuccessful.6
This paper presents the drive towards sui generis legislation for databases as a case study that exemplifies the expansionary nature of the contemporary intellectual property policy environment. Section I places the problem in context by discussing the strategic importance of databases for the contemporary research enterprise. Focusing on what databases are, how they are used by researchers, how they are becoming increasingly central to the process of scientific research, and how sui generis legislation would disrupt these processes helps frame the subsequent discussion of particular legislative proposals. Section II outlines and evaluates the three primary justifications advanced by proponents of sui generis database legislation; the need to fill in a perceived gap caused by lack of adequate protection under U.S. copyright law, the need to harmonize U.S. law with the European Union Database Directive, and the increased risks of misappropriation brought about by technological advances. Section III turns to the legislative response in the U.S., describing the database legislation that has been introduced in the 104th, 105th, 106th, and 108th Congresses, and setting forth the principle arguments raised by proponents and opponents of the measures. Section III also contains a discussion of the draft Database Treaty that had been considered by the World Intellectual Property Organization (WIPO) in 1996. Section IV provides an assessment of the validity of the claims of the proponents of database legislation by placing the database debate in a deeper political and economic context. The conclusion is reached that sui generis database legislation would hamper the goals of promoting scientific progress, and that such attempts should be rejected by policymakers.