Database rights are too tough on business, says expert

The European Union's Database Directive is too restrictive andhas the opposite of the desired effect of boosting e-commerce, anintellectual property expert has warned.

Estelle Derclaye of the University of Nottingham has toldtechnology law podcast OUT-LAW Radio that the idea of databaseprotection is a good one but that the Directive has been framed toobroadly and places restrictions on business that are tooonerous.

"Many features of the rights were quite generally drafted, quitebroadly drafted, and in legislation if you draft something broadlyit can be interpreted in a way that protects more than it should,"she said.

Databases are protected by copyright law when they are creativeenough to qualify. The Database Directive created a new right thatapplied to any database which was the subject of significantinvestment. This is called the sui generis – or unique – right.

It has been a controversial right because there has been a lackof clarity about the exact extent of its protection. Derclaye saidthat the danger of the right is that it grants powers too large andsweeping to database owners and creators.
"People want to have the sui generis right because it gives themthe possibility to charge high prices," she said.

Derclaye said that the rights should carry the same kinds ofexemptions that other intellectual property laws do.

"All these bad effects, there is no counter effect to that byhaving a short term of protection or lots of exceptions for usersfor research purposes or criticism or review."

The right could be a crucial factor in deciding cases over theuse of material from a company's website. Ryanair is suingaggregator Bravofly over its alleged 'screen scraping' of flightand pricing data from the Ryanair site.

Though it is not yet clear whether or not Ryanair will attemptto assert database rights in the Irish courts, Derclaye said thatit is the kind of case that could well be decided on thosegrounds.

The European Court of Justice ruled in a case involving WilliamHill and the British Horseracing Board that a database owner cannotuse the rights to protect something that is simply a byproduct ofits normal business.

"If that's the case [that the Ryanair website is deemed to bejust a by-product of running an airline] then it would be verydifficult for Ryanair to prove that it had this sui generis right,"she said.