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International Regulation of Databases: The Example of BioInformatics
- Douglas J. Sylvester
- Associate Professor of Law
- Arizona State University
1
American Model
- “Thin” Protection of Copyright Act
- Only protects compilation and derivatine works
- No protection for mere facts
- Feist
- Database consisting of “mere facts” not protected
- Originality requirement
- Texaco
- Commercial Use=No Fair Use
2
Scientific Databases in US
- Minimal Copyright Protection
- Trade Secrets
- Refusal to Share: Fear of Copying
- Licensing: Restrictive Terms
3
European Union
- Database Directive
- Passed in 1996
- Defines Database as:
- Including, literary, artistic, musical, or other collections of work
- Collections of other meterial such as texts, sound, images, numbers, facts, and data
- Collections of independent works, data, or other materials which are systematically or
methodically arranged and can be individually accessed
4
European Database Directive
- Protects:
- Aesthetics of the Database (selection/arrangement)
- Approximates US Approach
- 70 years + Life (same as US)
- Sui Generis Protection
- No “unfair” extraction of “significant” portions of data
- 15 years + 15 after each “alteration” (perpetual!)
- Countries may enact heigher standards
5
Hill Case
- UK Decision, August 2001
- Interpreted Directive:
- Bookkeeper set up online betting site
- licensed text of racing material from British Horseracing Board
- Bookies “grabbing” of identical text from BHB website violates EDD
6
US Responses
- Legislation
- None passed
- Many considered to grant sui generis protection to databases (in line with EDD)
7
Critic of EU-Based Solutions
- Access to factual data is essential for promoting science
- World-be database priates can be “stopped” by code (passwords, encryption)
- Branding (Lexis, Westlaw)
- Would not incent---would monopolize information
8
Proponents of EU-Based Solutions
- Rewards business for efforts
- Prevents Piracy
- Lack of protection stunts innovation and investment
- Licensing is too cumbersome
- And sometimes problematic to enforce
9
Consequences
- Bioinformatics and other Scientific Databases
- Contain mainly “facts”
- Not protected under US law
- Highly Protected in European law
- EU % of Database risen dramatically in last 5 years (10%)
- Reluctance of European databases to allow U.S. researchers access (fear of copying)
- Disadvantages US databases
- EDD only applies to DBs residing in EU countries
10
Consequences: 2
- Many databases are no longer open for free use
- Genome Consortium (Phoenix)
- Self-Help Protections
11
Word on Privacy
- EU Data Privacy Directive
- Much higher protection than US
- Forbids transfer of Personal Information (PI) from Europe to country with lesser standards
- Must Disclose Uses (Permissible) and Provide Access
- Think of Students and Their Records
- the Point is Simple: The Rest of the World Matters
12
Final Word
- Think Globally
- International Standards Matter
- Cross-border partnering
- Database Sharing
- Privacy Concerns are Different
13
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