Date of Award

Fall 2005

Degree Type

Dissertation

Degree Name

Doctor of Law (SJD)

Department

Law

First Advisor

Sompong Sucharitkul

Second Advisor

Christian Okeke

Third Advisor

Marc Greenberg

Abstract

It is undeniable that databases are an essential building block of the Information Society. Today, every business in developed countries operates fully based upon clientele databases, economic statistics, and industries profiles; and innovation and invention rely heavily on collections of facts, data and information that scientists discovered in research and development or exchanged among them. Legislatures have envisaged a need and significance of the free flow of access to information, thereby prescribing copyright protection only to creative selection and arrangement of the contents of databases, not the factual contents contained within. However, the advent of technology avails unconventional methods of copying, altering, and recompiling to manipulate the contents of databases. Anyone can make use of technology, gather information, recompile them, and take this opportunity to enter into market, being possessed by original players and creating unfair competition. Original database makers, therefore, are suffering from losses in investment and crying for a legal solution, giving rise to possible intellectual property right of sui generis databases or a right of "its own kind." Throughout history, it is clear that copyright extends only to the creative or expressive contents, not the underlying facts, data, or information. Although there were battles between publishers or authors, copyright law meant to reward creative genius rather than contribution of finance or pure labor. Over centuries, its rationale remained unchanged, promoting a proper balance of author's incentive to complement creativity cycle and the public's free and open access to information to keep the market place of ideas intact. For the protection of collections and compilations, Article 2(5) of the Berne Convention makes clear that it extends only to the creative elements of the selection and arrangement of the contents. However, it is insufficient for database industries who have contributed capitals and entrepreneurial efforts in the making of databases. To maximize profit, lobbyists from database industries have urged their governments to recognize a property right in the compiled facts and information resulted from entrepreneurial effort alone. This endeavor has reached not only national level, but also international. Such concept of protection, thus, opposes the principle of the free flow of access to information that copyright law has promoted. The scientists and those, who are in the educational field, express concern that such regime impedes the free flow of access to facts, data, and information by increasing a cost to access them. Developing and least developed countries worry about negative impacts of sui generis protection on their socio-economic infrastructure, particularly human resources development, not only because of an increasing cost to access, but a fear of losing their traditional knowledge, such as collections of undeveloped medical plants and compilations of unimproved medical treatments. A justifiable intellectual property right in sui generis databases, if any, must be considered and based upon the concept to achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedom for all in the global society to benefit from the progress of science and the use of arts and literatures.

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