Footprints of Feist in European Database Directive (eBook)

Indranath Gupta is an associate professor and assistant director of the Centre for Post Graduate Legal Studies and& Assistant Director at the Centre for Intellectual Property and Technology Law. Dr. Gupta received his LL.B. degree from the University of Calcutta, India, and holds an LL.M. with distinction from the University of Aberdeen, UK and a postgraduate research LL.M. in Computer Law from the University of East Anglia, UK. He obtained his Ph.D from Brunel University, London, UK. Dr. Gupta has been involved in qualitative and quantitative research. He was appointed as the research collaborator by the Università Bocconi, Milan, Italy, for a project funded by the European Commission under the 7th framework programme. He has also been appointed as a research assistant for a project relating to data protection compliance level at Brunel University, London. Dr. Gupta has also worked as an advocate in a solicitors’ firm at the Calcutta High Court. He has published in European and Indian Law journals and has spoken at international conferences and seminars. His research areas include database right, copyright, data protection, cyber law and interface of IP and Competition Law.

1.0 Introduction2.0 Database Directive Proposal in Europe2.1 Overall argument for a Database DirectiveIncentive for database producersDatabase production and legal structure in EuropeProtecting electronic databasesIncentive argument and production of databasesThe first evaluation report and question of incentive2.2 Structure of protection: perspective of producers2.3 Two-tier structure of Database Directive2.4 Feist decision as an argument for protection of databasesRequirement of copyright protectionSweat of the brow and electronic databasesAdverse effect3.0 Feist Jurisprudence in US3.1 Feist guidelinesOriginality and the US ConstitutionThe threshold for protecting compilations3.2 Feist and existing lawPrinciples in previous casesThe idea of originality3.3 Registration of compilations subsequent to FeistProcess of registrationAdopted measures3.4 Cases following FeistThreshold of protectionAmount of consistency4.0 Impact of Feist in the US4.1 ‘Sweat of the brow’ as an incentive for database productionExtent of impact on producersUse of technical measures4.2 Five years after Feist4.3 Rate of investmentInvestment towards databasesElectronic publishingNon-electronic databasesEffective business policy and utility of legislation4.4 US database debate and Feist decisionEU influenceThe debate at the WIPOEffect of Warren Publishing and Mathew Bender5.0 Feist’s threshold and Author’s Own Intellectual Creation5.1 Football Dataco case in EnglandSelection process adoptedThe threshold of creativityCreativity in data creationCreativity and single-sourced databaseAgreement with threshold adopted in England5.3 Member States’ interpretation of Article 3Convergence to a uniform AOIC thresholdModicum of creativity6.0 Feist Jurisprudence in Database Directive6.1 Resemblance of Feist standardMinimum creativity and a second comerPre-existing work, use of computer and sweat of the browApplication of quantitative factor6.2 Influence of Feist in AOICGreen Paper to first draft proposal: from Berne to FeistAccepted normThreshold over the years6.3 Positive effect of FeistIncentive for future database producersRemoval of sweat of the brow for copyright protection of databasesCopyright chapter separated from Database RightFactual contents and monopoly6.4 Non-electronic databases under Article 3Unique arrangement in competitive situationSelected information and market demandSecuring investments towards contents6.5 Experiments with Database Right7.0 Uncertainties with database right: Negative Interpretation of Feist7.1 Requirement in the draft proposalLimited protection to producersLimited incentive for electronic databases7.2 Imbalance and complexities in the enactmentThreshold of substantial investment uncertainLimited exceptionsUncertain term of protection7.3 Single-sourced databases under the DirectiveInvestment barrier and Dataco decisionMonopoly over factual contentDatabase Right extra layer of protection8.0 ConclusionBibliography