- As
the editors of Database Law correctly point out,
databases are core and crucial commodities in the information age. Not
surprisingly, how these valuable items
might be protected by the law is
a significant issue. Significant enough, at least, for the European
Union to enact a Directive on
the Legal Protection of Databases[1]
(Database Directive), which seeks to harmonise copyright law protection
of databases in the Member States and also establishes a
new sui
generis database right. The UK incarnation of the Database
Directive is the Copyright and Rights in Databases Regulations 1997[2]
(Database Regulations). Database Law focuses on the
impact of this statutory instrument.
- In
a sensibly efficient (not to mention highly
marketable) fashion, the contributors to this book (including the
editors) are drawn
from the partners and solicitors at law firm, Bird
& Bird. This firm boasts specialist groups working in the
fields of
information
technology, telecommunications, digital media and on-line
services. The team at Bird & Bird are to be congratulated for
their
foresight in being the first to address a legal niche that has only
opened up recently, by virtue of the Database Regulations.
- The
editors hope that the 'patient reader' will come
away with 'a rounded appreciation' of the Database Regulations and
'some ideas
about the likely areas of greatest contention and debate
that will arise from [the new legislation]'. During this process of
enlightenment,
the editors also hope to keep readers 'entertained and
stimulated'.
- The text is
divided into eleven chapters plus
appendices, amounting to 230 odd pages in total, and adopts quite a
methodical approach
to its subject matter. The introductory chapter
does its best to ingrain the text with a lively tone, but this is not
sustained for
the remainder of the book. After cursorily exploring
common law and statutory mechanisms for protecting databases, the new
Database
Regulations are declared 'the Sale of Goods Act of the new
millennium'. It is worth noting here, the book presumes that
proprietary protection of databases is appropriate and features
minimal
analysis of the extent of protection that should be accorded to them.
- Chapter
2 usefully traces the development of the
Database Directive from its embryonic stage in the EC Green Paper on
Copyright and
the Challenge of Technology[3]
through to its first and subsequent proposals. The reader's attention
is drawn to the major points of divergence between the proposals
and
the Directive as adopted, which include the significantly amended
definition of 'database', the distinct operation of copyright
and sui
generis protection and the removal of the compulsory
licensing provisions under the sui generis right
from the original proposal.
- The
interface between Community law and its
implementation in UK law is the topic of chapter 3. The legal effect of
the Database Directive
per se in the UK and the
consequences
upon failure to implement the Directive are evaluated, along with the
schema of the Database Regulations.
- Chapter
4 deals with the substantive effect of the
Database Directive and Database Regulations in terms of copyright
protection. Copyright
law protection of databases prior to the
Regulations is outlined and contrasted with the common law position in
the US. Then follows
a discussion of the copyright requirements of the
Database Directive and how these have been implemented into the
Copyright Designs
and Patents Act 1988 (CDPA) by the Database
Regulations. The divergent copyright regimes that now exist for
non-database compilations
and databases are examined, together with
some of the ambiguities of construction created by the Regulations,
such as the types of
works that may comprise a database.
- The
all new and important sui generis database
right is addressed in chapter 5. The crucial elements of subsistence,
such as definition, originality, qualification and
ownership, are
discussed before moving on to consider the rights attaching to a
database right and the issue of duration. Here it
might have been
useful to pause for longer on the provisions dealing with renewal of
term since it is by no means clear that they
are capable of
straightforward application.
- Knowing
what can or cannot be done by the user of a database is a vital piece
of the protection jigsaw. Chapter 6 examines the limitations
and
exceptions that exist for copyright protected databases and
non-database compilations and sui generis protected
databases. The chapter concentrates on the rights of lawful users and
fair dealing with these works.
- Chapter
7 summarises the provisions of the CDPA that have been altered, or
added to, by the Software Regulations [4]
and Database Regulations, but which have already been canvassed
elsewhere in the text. It reiterates the major changes under copyright
law to notions of originality in respect of databases and non-database
compilations and to the provisions relating to computer generated
works.
- Chapter 8 highlights
the statutory provisions that
affect licensing, alongside a checklist of issues that should be
addressed in any
licensing of copyright or database right in a
database. The second half of this chapter reviews the remedies
available to those who
wish to enforce copyright or database right in
their databases and the procedure that one would follow in order to
achieve enforcement.
- Chapter 9
seeks to place copyright and sui generis protection
of databases in a wider legal context by considering EC and UK
competition law aspects of databases. The EC section assesses
the
possible impact of Articles 85 and 86 (now renamed Articles 81 and 82)
of the Treaty of Rome[5]
on transactions involving databases. The UK section traverses the
relevant provisions of the Restrictive Trade Practices Act 1976,
Resale
Prices Act 1976, Competition Act 1980 and Competition Bill.
- Chapter
10 continues to take account of broader legal
considerations by sketching the framework of international obligations
for intellectual
property law protection of databases.
- The
final chapter covers the transitional provisions
of the Database Directive and Database Regulations. An admirable effort
is made
to unravel the thorny status of databases pre and post the
Regulations.
- There ends the
150 page exposition of 'Database Law', leaving
readers to entertain themselves with another 80 pages of appendices, in
which the Software Directive [6],
Software Regulations, Database Directive, Database Regulations and
amended sections of the CDPA are reproduced, next to the pertinent
international treaties. These statutory materials are a helpful
addition to the text, as are the detailed tables and index.
- Database
Law succeeds in making the Database
Directive and Database Regulations intelligible, while at the same time
flagging key interpretative
difficulties that might arise in the
future. True, the journey to this point of enhanced knowledge is a
fairly dry one. Legal practitioners
and corporate counsel will
nevertheless find this resource invaluable when advising on matters
concerning databases.
Notes
[1]
Directive 96/9/EC, 11 March 1996 on the Legal Protection of Databases
[1996] OJ L77/20.
[2]
SI 1997/3032, which came into force on 1 January 1998.
[3]
COM (88) 172, issued on 7 June 1992.
[4]
Copyright (Computer Programs) Regulations 1992, SI 1992/3233.
[5]
Treaty establishing the European Economic Community (Rome, 25 March
1957).
[6]
Directive 91/250/EEC, 14 May 1991 on the Legal Protection of Computer
Programs (Software Directive), OJ [1991] L122/42.
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