Estelle Derclaye of the University of Nottingham has told
technology law podcast OUT-LAW Radio that the idea of database
protection is a good one but that the Directive has been framed too
broadly and places restrictions on business that are too
onerous.
"Many features of the rights were quite generally drafted, quite
broadly drafted, and in legislation if you draft something broadly
it can be interpreted in a way that protects more than it should,"
she said.
Databases are protected by copyright law when they are creative
enough to qualify. The Database Directive created a new right that
applied to any database which was the subject of significant
investment. This is called the sui generis – or unique – right.
It has been a controversial right because there has been a lack
of clarity about the exact extent of its protection. Derclaye said
that the danger of the right is that it grants powers too large and
sweeping to database owners and creators.
"People want to have the sui generis right because it gives them
the possibility to charge high prices," she said.
Derclaye said that the rights should carry the same kinds of
exemptions that other intellectual property laws do.
"All these bad effects, there is no counter effect to that by
having a short term of protection or lots of exceptions for users
for research purposes or criticism or review."
The right could be a crucial factor in deciding cases over the
use of material from a company's website. Ryanair is suing
aggregator Bravofly over its alleged 'screen scraping' of flight
and pricing data from the Ryanair site.
Though it is not yet clear whether or not Ryanair will attempt
to assert database rights in the Irish courts, Derclaye said that
it is the kind of case that could well be decided on those
grounds.
The European Court of Justice ruled in a case involving William
Hill and the British Horseracing Board that a database owner cannot
use the rights to protect something that is simply a byproduct of
its normal business.
"If that's the case [that the Ryanair website is deemed to be
just a by-product of running an airline] then it would be very
difficult for Ryanair to prove that it had this sui generis right,"
she said.
