Intellectual property is not a monopoly on facts, information and data. Until recent
years, this principle seemed to be safely entrenched in both national laws and
jurisprudence across the world. Copyright laws instruct that authors have certain
exclusive rights on their own original expressions, but cannot exclude others from
accessing, using and benefiting from the information that such expressions convey.
Similarly, patents give to inventors a temporary monopoly on certain uses of their
own inventions, but on condition that the information on how to work the invention
is fully disclosed and made accessible to anyone interested in the patent. Collections
of data, or databases, made no exception. However many facts, information or data
you collect, you do not acquire a right to exclude others from using the collection
and pick up the information therein contained. As the US Supreme Court stated in
the landmark Feist decision: “Common sense tells us that 100 uncopyrightable facts
do not magically change their status when gathered together in one place”.
With the Database Directive of 1996, the European legislator has challenged this
commonsensical statement. A new, somehow “magical” right has been introduced,
in the hope of creating an incentive to database makers. The latter now enjoy a right
to exclude others from using facts, information and data, on the very ground that
they have gathered them in one place—a database. Does the “database right”
represent a departure from that revered principle of intellectual property recalled
above? To what extent is this right a monopoly on facts, information and data? And
what is its practical effect and significance?