Current Legal Developments in Database Protection in Europe

Robert Clark, Professor of Law, Law School, University College Dublin, Ireland

The controversial 1996 EU Database Directive has attracted extensive criticism world wide because of fears that such protection will stifle research and innovation and over-protect European publishers. While empirical evidence of this trend is hard to pin down ( even the US debate over database legislation generates more heat than light ) there is no doubt that views on this are sincerely and passionately held.

The story of how the Directive has been interpreted in both european national courts and in the European Court of Justice is an interesting one, and the cases reflect a profound difference of opinion and approach as between the common law jurisdictions of the UK and Ireland and the rest of the European Union. Indeed, recent case-law from  the Dutch courts suggests that both copyright protection and the database right have been 'interpreted' out of existence, raising the very real possibility that protection for US databases through copyright protection is actually more extensive now than is the case in the EU because the copyright originality standard is higher than the US Feist standard. In the paper the author will give examples from US, Australian and Canadian case-law that illustrates just how odd the legal landscape now looks.

In the recent review of the Directive undertaken by the European Commission the conclusion reached was that the US has actually strengthened it's dominance of the database market, even absent a database right and that the European Information Industry is falling further behind. The European Commission has set out some options, one of which is repeal altogether. In the paper the author also suggests some national measures that could well fill any void while at the same time resisting the reinstatement of (over) extensive copyright laws.