This chapter examines the history of the Directive and its final form. It provides an overview of the official process leading up to the adoption of the Directive, and emphasises its changes in direction from the first EU documentation suggesting separate protection for databases through to the final version. In so doing, it demonstrates the myriad of potential models for sui generis protection. The initial proposals were firmly based on unfair competition principles, while the final version of the Directive draws very heavily upon copyright principles. The chapter also undertakes an analysis of individual provisions of the Directive and examines some of the difficulties associated with their interpretation. Particular emphasis is placed upon the relationship between copyright in the structure of databases and the individual contents of databases on the one hand, and the new sui generis right provided by the Directive on the other. In the course of this analysis, reference is also made to the justifications provided by various organs of the EU for the Directive's approach to particular issues and the various provisions implementing that approach. Finally, the last section of this chapter discusses the provisions of the recently adopted EU Directive 2001/29/EC of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (“the Copyright Directive”). The Copyright Directive contains provisions concerning the prohibition of circumvention of technological protection devices designed to protect copyright material.

The preceding chapters have involved a detailed analysis of the legal position concerning the Directive and American proposals for sui generis protection of databases. Chapter 6 examined the moves by the EU to spread the Directive's model for database protection throughout Europe and to other regions via multilateral and bilateral agreements. This chapter examines some of the justifications for sui generis protection of databases and recommends some key aspects of any future legislation or international agreement that provide sui generis protection of databases.

It does so by firstly looking at the arguments for sui generis protection. Part of this section draws upon the economic justifications for intellectual property regimes as discussed by Posner and Landes. At the same time, the costs of creating intellectual property regimes as identified by Posner and Landes are discussed in the context of databases. In the course of this discussion, this section of the chapter deals with some of the particular problems associated with the economics of information, particularly those associated with treating information as a commodity. It is possible to treat information as a commodity and, in many cases, desirable to do so. The critical issue is determining the nature of that commodity and the nature of the rights that should be given in relation to it. One of the particular difficulties in this area is that information tends to be treated as homogenous when, in fact, it is not. Consequently, different types of databases and different uses of databases need to be treated differently.

This chapter deals with two basic issues. First, it examines the application of American copyright law and the tort of misappropriation, part of the wider law of unfair competition, to databases. The discussion of copyright is relatively straightforward and brief (this is because the American standard of originality was discussed in some detail in Chapter 2). However, the American copyright provisions on circumvention of technological measures are also discussed as they provide a means of obtaining de facto protection for the contents of databases, even in circumstances where the copyright protection for a database is minimal. This section on copyright also deals with the American defence of fair use, because the latest legislative proposals for sui generis protection have included a defence that is analogous to fair use. Consequently, an appreciation of the defence of fair use in copyright is necessary to an understanding of the proposed analogous defence to sui generis claims. In addition, the broad, discretionary defence of fair use needs to be compared with the far more restrictive exceptions contained within the Directive.

The discussion concerning the tort of misappropriation is considerably longer than the treatment of copyright for a number of reasons. It deals with the history of the tort, including its chequered history since its initial acceptance in 1918 by the American Supreme Court, the subsequent judicial reluctance to apply it and the more recent application of it to provide protection separate from that provided by copyright.