Sui Generis Versus Misappropriation: Legal Protection For Database

The development, compilation, distribution and maintenance of commercially significant databases require enormous investment of time, personnel and money to gather and verify factual materials, present it in a user-friendly way and keep it current and functional for users. However, existing legal system could not afford appropriate protection for the investment of the database producers.Specifically, Copyright Law protects only those databases whose selection, or arrangement, is creative or original in some way. It may not provide protection for large comprehensive electronically stored database. The compiler has exercised no selection because the databases are comprehensive. Further, arrangement only occurs when the user conducts a search. In the absence of selection and arrangement, no copyright protection is available. Meanwhile, Copyright right protection only extends to the "expression", but not the facts themselves. If the third party re-utilized the substantial part and changed the arrangement, the producer could do nothing. Therefore, the producers' investment is at great risk. Other methods also come with problems. TPMs, technology protection measures, were conferred legal protection only when they were used for copyright works. In the field of Competition Law, there are two rules could be used for protection of database. In some countries, they are Trade Secret rule and general rule. In other countries, they are Trade Secret rule and Misappropriation rule. However, the commercial database, which was most concerned in the protection of database was distributed to the public and could not constitutes trade secret as a result. And the general rule and misappropriation rule were limited in use due to lack of specific rules. Furthermore, competition law only deals with competitors. Therefore, it could not carry out protection for database solely. In the field of Contract Law, there are two questions arising; 1, how the contract could protect non-original database while copyright law refused to do so. 2, how to balance the producers' interests and the public interests while the producers could control users through contract. Integrating the existing protection measures, eliminating their conflicts is a task of every country. Nowadays, there are two approaches. The EU approach and the US approach. The EU approach is based upon Sui Generis system while the US one based upon misappropriation rule. This article introduces the details of both approaches and concludes which one is appropriate for China.