Journal Article

Database rights' subsistence: under starter's orders

Juliet Jenkins

in Journal of Intellectual Property Law & Practice

Volume 1, issue 7, pages 467-480
Published in print June 2006 | ISSN: 1747-1532
Published online May 2006 | e-ISSN: 1747-1540 | DOI: http://dx.doi.org/10.1093/jiplp/jpl059
Database rights' subsistence: under starter's orders

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Legal context. The criteria for database rights' subsistence set out in the Directive on the Legal Protection of Databases are largely undefined. Guidance on their interpretation has been provided by the ECJ and its guidance on qualifying investment activities was applied by the Court of Appeal in the BHB case.

Key points. The article comments upon the guidance on the subsistence criteria for database rights provided by the Advocate General and the ECJ in the BHB and Fixtures Marketing cases and analyses the Court of Appeal's application of the production-processing dichotomy in the BHB case. It offers thoughts on thorny issues such as the avoidance of a double benefit for database developers in copyright and database right, the role of investments in technology, and the effect of the production-processing dichotomy on the risk of monopolies over facts.

Practical significance. Database developers seeking database rights' protection should keep the subsistence criteria in mind when devising their processing arrangements, designing their databases, and recording their investment activities associated with database development.

Journal Article.  10467 words. 

Subjects: Arbitration ; Intellectual Property Law

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