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Database rights are too tough on business, says expert

The European Union's Database Directive is too restrictive and has the opposite of the desired effect of boosting e-commerce, an intellectual property expert has warned.05 Sep 2008

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.