Journal of Intellectual Property Law & Practice Advance Access originally published online on January 26, 2007
Journal of Intellectual Property Law & Practice 2007 2(2):97-103; doi:10.1093/jiplp/jpl229
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© The Author (2007). Published by Oxford University Press. All rights reserved
Sui generis database protection: a new start for the UK and Ireland?
LEGAL CONTEXT: The decisions of the ECJ in William Hill and Fixtures Marketing constitute setbacks for rightholders seeking to protect the content of databases from unauthorised use by others. This development is keenly felt in Ireland and the UK because of the absence of any overlapping protection in the form of unfair competition relief against parasitical activities by competitors. Ironically, post-Feist US copyright law, in the form of the Montgomery County Realtor case (1995), when contrasted with the recent Dutch ZAH decision (2006), shows that US copyright law affords a greater level of protection than is available in the EU under the Database Directive. The ZAH decision also builds upon earlier German case law, virtually eliminating liability for linking to website material made available to the public.
KEY POINTS: In ZAH, the Dutch Court's interpretation of the Directive and criteria to be met before content may be copyright protected was very restrictive, in stark contrast to the approach of most Common Law judges. The result is a very different one to that intended by the drafters of the Directive, a point reinforced by the European Commission's own 2005 assessment of the Directive.
PRACTICAL SIGNIFICANCE: The Directive has been a disaster from every perspective. Lawmakers in the UK and Ireland may feel that the time is right to consider adopting national measures to produce a more balanced protective measure in respect of commercial databases and an effective means of stimulating investment by following unfair competition principles, rather than the quasi-copyright model of the sui generis right. ZAH demonstrates that until the European Commission tackles the critical issue of a common originality standard (which is very unlikely) national differences will be inevitable within EU copyright law.
Key Words: European Union member states are still grappling with the consequences of the double impact of the Database Directive and the European Court of Justice's subsequent restrictive rulings on its applicability. • An area that has not hitherto been fully explored is the lack of cohesion in the consistent application of Europe's current database protection regime across countries in which database protection is split between the sui generis right, which is notionally fully harmonized, and traditional copyright, where there still exist substantial doctrinal and practical differences between countries with civil law and common law traditions. • Using the relatively mundane factual situation that brought about the recent Dutch ZAH decision as a prism through which to refract his legal analysis, the author points out the inconsistencies, anomalies and unresolved difficulties inherent in protecting databases.
* Professor Robert Clark, School of Law, University College Dublin, Consultant, Arthur Cox, Dublin, London. bob.clark{at}arthurcox.com