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427177 1 En Bookbackmatter 171..189 Concluding Remarks Amongst all the confusion and ambiguities with the database directive, especially with the sui generis part, one needs to re-visit the three options that the first evaluation report had suggested in the context of possible amendments to the Directive.1 The first proposal relates to the possibility of repealing database right, the second option is maintaining status quo and the third option is amending the current structure of the right.2 While first two options are not desirable, the third option is much more viable. The report proposed to repeal database right from the Directive.3 On a practical note, it will be difficult to execute such proposition. One must refer to the view expressed in the report itself. It considered the amount of resistance such action would face from European publishers.4 There may be additional legal uncertainty to roll back to the time when there was no database right in Europe. The implications would be felt mostly in Common Law jurisdictions.5 Based on high number of cases that have already been decided, the proposition of rolling back may increase uncertainty, instead of resolving concerns associated with database right.6 These observations indicate that it is difficult to reach a consensus to remove a piece of legislation.7 Therefore, repealing database right from the Directive is not an ideal option. 1‘DG Internal market and services working paper: First Evaluation of Directive 96/9/EC on the legal protection of databases’ (Commission of the European Communities, 12 December 2005) available at <http://ec.europa.eu/internal_market/copyright/docs/databases/evaluation_report_en.pdf> (accessed 31 October 2016) (First Evaluation of Directive 96/9/EC), para [6]. 2ibid. 3ibid, para [6.1]. 4ibid, para [1.5]. 5ibid, para [6.1]. 6Supra section 7.3. 7First Evaluation of Directive 96/9/EC, para [6]. © Springer Nature Singapore Pte Ltd. 2017 171 I. Gupta, Footprints of Feist in European Database Directive, DOI 10.1007/978-981-10-3981-2 172 Concluding Remarks As to the second option of status quo, evaluation report suggested that the Directive might be left untouched. In future, database right is unlikely to create any additional burden in the context of dissemination and access to information.8 This argument was primarily based on the BHB decision. It was believed that ECJ ruling in this case successfully removed possible monopoly situation in relation to single-sourced databases.9 Despite this contention, monopolization of factual information still remains a concern.10 Hence, the option of status quo is not advisable, since there are legitimate concerns associated with this right. Although the remaining viable alternative is amending the Directive, one has to answer two questions: what kind of amendments are required; and whether these amendments would be able to resolve problems associated with database right. There have been different suggestions associated with the structure of database right.11 Mark Davison observed that narrower protection should be given based on weak economic argument, and proposed for an unfair competition model.12 Estelle Derclaye suggested that database right should be crafted in a way to exclude the over-protective elements.13 Elizabeth Herr noted that some protection is required but the structure must be decided only based on evidence.14 In his doctoral dis- sertation, Victor Bouganin proposed for a narrower right with compulsory licensing provision and more exceptions.15 Similarly, Annemarie Beunen proposed for a narrower right with the inclusion of compulsory licensing provision.16 Any such suggestion of improving the structure of the right, however, without evidence 8This suggestion primarily considered the decision of the ECJ in British Horse Racing v William Hill. According to the evaluation report, the ECJ has successfully curtailed some of the existing problems in the directive, Evaluation Report. 9In fact, owing to the removal of compulsory licensing provisions for single-sourced databases, under Article 16 of the Directive, periodical evaluation has been made a requirement to oversee any possible anti-competitive effect enshrined in the database right. Although the report did not refer to any independent study about the anti-competitive effect, there was reference to the decision of the ECJ concerning the protection of single-sourced databases under the database right. 10Supra section 7.3; Annemarie Beunen, Protection for databases: The European Database Directive and its effects in Netherlands, France and United Kingdom (Wolf Legal Publishers Leiden 2007) (n 123) 127–128. 11Work particularly concentrated on sui generis database right has seen three aspects; Narrower right with the inclusion of compulsory licensing provision for sole source databases, Beunen (n 10). 12Mark Davison, The legal protection of databases (Cambridge University Press Cambridge 2003) (n 35). 13Estelle Derclaye, The Legal Protection of Databases: A Comparative Analysis (Edward Elgar, Northampton 2008) (n 51). 14Robin Elizabeth Herr, Is the Sui Generis Right a Failed Experiment? A legal and Theoretical Exploration of How to Regulate Unoriginal Database Contents and Possible Suggestions for Reform (DJØF Publishing Copenhagen, Denmark 2008). 15Victor Bouganin, ‘The legal protection of databases, from copyright to dataright’ (PhD thesis, University of London 1999). 16Beunen (n 10). Concluding Remarks 173 would be speculative in nature.17 The need for empirical evidence already exists in the background of criticism surrounding the database right.18 It would have been much easier to estimate the right at the beginning based on requirement, rather than adjusting the structure of such right subsequent to the enactment.19 One might wonder as to what would have happened without Feist.Asafirst reaction, the explanatory memorandum to the first draft proposal would not have contemplated about the apprehended ‘new-line’ of jurisprudence that Feist had developed, nor would it have questioned the role of ‘sweat of the brow’ argument as a basis for copyright protection.20 Further, the argument that more incentive is required in the form of a database right for producers would not have garnered any support.21 The argument that copyright protection for databases in Europe must be harmonized did not originate from the Feist decision.22 However, without the Feist decision, the Commission would only have the Berne standard for compilations to follow to decide the scope of Article 3.23 It is also clear that while the Commission wanted to remain within the broad structure of the Berne Convention, there was no intention to remain within the scope of the same.24 Therefore, without Feist, there would not have been any standard available, and it would have been difficult to predict the shape and structure of the Database Directive. 17“It may be regretted that such a strong exclusive right could be introduced on the mere basis of an assumed need”, Beunen (n 10) 279. 18The author concludes by saying that theoretical and empirical economic studies on the effects of the database right are highly desirable. Estelle Derclaye, ‘Intellectual property rights on infor- mation and market power – comparing European and American protection of databases’ (2007) 38 (3) IIC 275, 298. 19‘The preferable way’ would have been to improve ‘legal and factual analysis’ before taking up ‘far reaching measures’ by way of introducing the database right, Annette Kur and others, ‘First evaluation of Directive 96/9/EC on the legal protection of databases- comment by the Max Planck Institute for Intellectual Property, Competition and Tax Law, Munich’ (2006) 37(5) IIC 551, 551. 20ibid. 21Miriam Bitton, ‘Exploring the European Union Copyright Policy through the lens of the Database Directive’ (2008) 23(4) Berkeley Tech LJ 1411, 1426. 22Commission, ‘Proposal for a Council Directive on the legal protection of databases’ COM (92) 24 final, s 1. 23ibid, para [2.2.4]. 24ibid, paras [5.1.3] and [6.1.3]. Bibliography Statutes/Directives/Official Opinions Case-604/10 Football Dataco Ltd v Yahoo! UK Ltd [2012] ECDR 7, Opinion of AG Mengozzi Collections of Information Antipiracy Act HR 2652 105th Cong (1998) Commission, ‘Amended Proposal for a Council Directive on the legal protection of Databases’ COM (93) 464 final Commission, ‘Copyright and the Challenge of Technology’ (Green Paper)’ COM (88) 172 final Commission, ‘Follow-up to the Green Paper: Working Programme of the Commission in the field of Copyright and Neighbouring Rights’ (Follow-up Green Paper) COM(90) 584 final Commission, ‘Proposal for a Council Directive on the legal protection of databases’ COM (92) 24 final Commission, ‘Proposal for a Council Directive on the legal protection of original topographies of semiconductor products’ COM (85) 775 final Commission, ‘Report from the Commission to the Council, The European Parliament and the Economic and Social Committee on the Main Events and Developments in the Information Market 1993–1994’ COM (95) 492 final Computer Misuse Act 1990 (c 18) Consumer and Investor Access to Information Act H R 1858 106th Cong (1999) Copyright Designs and Patent Act 1988 (c 48) Council Common Position 20/95/EC of 10 July 1995 with a view to adopting the database directive [1995] OJ C 288 Council Common Position of 30th October 1995 regarding the Proposal for a Council Directive on the legal protection of databases [1995] OJ C288 Council Directive 1991/250/EEC of 14 May 1991 on the legal protection of computer programs [1991] OJ L122 Council Directive 2001/29/EC of 22
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