Footprints of Feist in European Database Directive: A Legal Analysis of IP Law-Making in Europe

ISBN-13: 9789811350153 / Angielski / Miękka / 2018 / 189 str.

Indranath Gupta

Spis treści

1.0 Introduction

2.0 Database Directive Proposal in Europe

2.1 Overall argument for a Database Directive

Incentive for database producers

Database production and legal structure in Europe

Protecting electronic databases

Incentive argument and production of databases

The first evaluation report and question of incentive

2.2 Structure of protection: perspective of producers

2.3 Two-tier structure of Database Directive

2.4 Feist decision as an argument for protection of databases

Requirement of copyright protection

Sweat of the brow and electronic databases

Adverse effect

3.0 Feist Jurisprudence in US

3.1 Feist guidelines

Originality and the US Constitution

The threshold for protecting compilations

3.2 Feist and existing law

Principles in previous cases

The idea of originality

3.3 Registration of compilations subsequent to Feist

Process of registration

Adopted measures

3.4 Cases following Feist

Threshold of protection

Amount of consistency

4.0 Impact of Feist in the US

4.1 ‘Sweat of the brow’ as an incentive for database production

Extent of impact on producers

Use of technical measures

4.2 Five years after Feist

4.3 Rate of investment

Investment towards databases

Electronic publishing

Non-electronic databases

Effective business policy and utility of legislation

4.4 US database debate and Feist decision

EU influence

The debate at the WIPO

Effect of Warren Publishing and Mathew Bender

5.0 Feist’s threshold and Author’s Own Intellectual Creation

5.1 Football Dataco case in England

Selection process adopted

The threshold of creativity

<5.2 CJEU observation in Football Dataco

Creativity in data creation

Creativity and single-sourced database

Agreement with threshold adopted in England

5.3 Member States’ interpretation of Article 3

Convergence to a uniform AOIC threshold

Modicum of creativity

6.0 Feist Jurisprudence in Database Directive

6.1 Resemblance of Feist standard

Minimum creativity and a second comer

Pre-existing work, use of computer and sweat of the brow

Application of quantitative factor

6.2 Influence of Feist in AOIC

Green Paper to first draft proposal: from Berne to Feist

Accepted norm

Threshold over the years

6.3 Positive effect of Feist

Incentive for future database producers

Removal of sweat of the brow for copyright protection of databases

Copyright chapter separated from Database Right

Factual contents and monopoly

6.4 Non-electronic databases under Article 3

Unique arrangement in competitive situation

Selected information and market demand

Securing investments towards contents

6.5 Experiments with Database Right

7.0 Uncertainties with database right: Negative Interpretation of Feist

7.1 Requirement in the draft proposal

Limited protection to producers

Limited incentive for electronic databases

7.2 Imbalance and complexities in the enactment

Threshold of substantial investment uncertain

Limited exceptions

Uncertain term of protection

7.3 Single-sourced databases under the Directive

Investment barrier and Dataco decision

Monopoly over factual content

Database Right extra layer of protection

8.0 Conclusion

Bibliography

O autorze

Indranath Gupta is an associate professor and assistant director of the Centre for Post Graduate Legal Studies and& Assistant Director at the Centre for Intellectual Property and Technology Law. Dr. Gupta received his LL.B. degree from the University of Calcutta, India, and holds an LL.M. with distinction from the University of Aberdeen, UK and a postgraduate research LL.M. in Computer Law from the University of East Anglia, UK. He obtained his Ph.D from Brunel University, London, UK.

Dr. Gupta has been involved in qualitative and quantitative research. He was appointed as the research collaborator by the Università Bocconi, Milan, Italy, for a project funded by the European Commission under the 7th framework programme. He has also been appointed as a research assistant for a project relating to data protection compliance level at Brunel University, London. Dr. Gupta has also worked as an advocate in a solicitors’ firm at the Calcutta High Court. He has published in European and Indian Law journals and has spoken at international conferences and seminars. His research areas include database right, copyright, data protection, cyber law and interface of IP and Competition Law.

Blurb

Connected to the jurisprudence surrounding the copyrightability of a factual compilation, this book locates the footprints of the standard envisaged in a US Supreme court decision (Feist) in Europe. In particular, it observes the extent of similarity of such jurisprudence to the standard adopted and deliberated in the European Union. Many a times the reasons behind law making goes unnoticed. The compelling situations and the history existing prior to an enactment helps in understanding the balance that exists in a particular legislation. While looking at the process of enacting the Database Directive (96/9/EC), this book reflects upon the concern that was expressed with the outcome of Feist decision in Europe.