Full text facility is provided for all nineteen research journals viz. Show full item record. Ahmad, Tabrez Dan, Sourav. Databases are generally perceived as static warehouses, storing up valuable facts and information.
The Legal Protection of Databases
With the advent of e-commerce, entire businesses are being built upon databases and generating revenue streams from subscriber fees, royalties, or advertising. In order to recover the initial investment of time, money and skill put into it and to avoid parasitic competition, database manufacturers protect their compilation efforts.
Therefore, without the ability to restrict access to and use of databases that it compiles, a company is effectively discouraged from participating in the information age. It is difficult to reproach this interpretation of article to the court as the provision leads to it.
It is rare for national courts to check the national law against the Database Directive. In France, no court has applied the directive as such to my knowledge, as opposed to the courts in England and Wales for instance. Likewise, the Supreme Court has yet to address this issue.
So it is not possible to say yet that higher French courts now apply the EU case law on the infringement test correctly. Article 13 of the Database Directive allows cumulation between the sui generis right and, among others, unfair competition.
In France, the cumulation between the two actions is expressly provided for in articles L. The unfair competition action thus complements the infringement action. This complementary nature means that there can be cumulation as long as the acts of unfair competition complained of are distinct from the infringement acts. Therefore, there can only be a condemnation for unfair competition if a breach distinct from infringement can be established. If not the unfair competition action will be rejected. Courts and commentators are anonymous on this point.
However, some courts and commentators disagree as to what constitute acts or facts distinct from infringement. For some courts and commentators, slavish copying, also called parasitism in France, is not a distinct act or fact. Others consider parasitism as an act of unfair competition and thus parasitism as a distinct fact. Therefore, in France, some courts allow an overlap between sui generis right infringement and parasitism. There can be three types of overlap: simultaneous or concurrent while the sui generis right subsists , a posteriori or subsequent when the term of the sui generis right has elapsed and negative when the sui generis right cannot subsist because the conditions were not fulfilled.
In the case of the simultaneous overlap, it means that the same fact copying the whole database or part of it is punished and repaired twice. The three overlaps also entail that the sui generis right holder can bypass the stricter conditions of the sui generis right by using the unfair competition action instead.
This also renders the sui generis right useless; there is no need to resort to it since parasitism absorbs it. For all these reasons, these overlaps lead to over-protection. Before , courts were split on the issue of whether parasitism is a fact distinct from sui generis right infringement.
As to the negative overlap, only one court condemned the parasitic copying of a database which it held unprotectable by the sui generis right. From until now, the split has remained among first instance courts. But at the higher level, the trend has gradually been to reject the overlap between the sui generis right and parasitism and the Supreme Court has rejected at least the negative overlap.
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Of those courts which allow the overlap the vast majority being first instance courts , some courts allow the negative one, others, the simultaneous one. Let us first look at those courts which allow the negative overlap. One such jurisdiction is the Court of appeal of Paris which confirmed a decision of the Paris Commercial Court in its entirety.
The Paris Commercial Court accepted jurisdiction when the claimant brought an unfair competition action for extraction of data from its database and the court did not look into the question whether a sui generis right subsisted and whether it was infringed. The defendant also used the name of the claimant to sell its software.
It is unclear from the decision why it found that this was an act of parasitism rather than risk of confusion. The others are decisions from the first instance courts of Caen and Paris. The court of Caen admitted the action in unfair competition for parasitism although it rejected the claim based on the sui generis right. Nevertheless, it held that it is possible in this situation to admit an action based on parasitism. In the particular case before it though, it held that parasitism was not established.
This in itself is not problematic. But then it states that there is unfair and parasitic competition. The decision is thus a little unclear on the legal principles even if in the present case, it was totally clear that there were several acts leading to confusion anyway. In conclusion, those three courts accepted parasitism as an alternative basis to sui generis right infringement.
A Comparative Analysis
As to the simultaneous overlap, in GpsPrevent v Coyote System et al. It is clear therefore that even if the court does not utter the word, it is condemning on the basis of parasitism, not risk of confusion. Other first instance courts however have rejected the simultaneous overlap. In Europages v Ewaycom , the first instance court of Paris is very clear: it states that the claimant cannot win on the basis of the unfair competition action as the act of copying is the same as that repaired under infringement of the sui generis right.
The chambers of the commercial court of Paris in Xooloo and AFP were different, which may explain the different results. However, the same chamber and same judges of the court of first instance of Paris decided the Europages and Adenclassifieds decisions, which are at odds. In conclusion, many first instance courts still allow the negative and simultaneous overlaps.
There are however more recent decisions from the Supreme Court and courts of appeal which do not cumulate the two actions. It shows that the defendant did not create confusion. Implicitly, the Supreme Court is also saying that if there is no risk of confusion, the simple act of copying of an unprotected database is not reprehensible under the law of unfair competition. It thus rejects the negative overlap. The court of first instance of Paris decision in Adenclassifieds is even stranger, as it not only contradicts its previous decision in Europages but also the Supreme Court on this point.
In , the court of appeal of Versailles held that a guide comparing different types of cars was a database protected by copyright but not simultaneously by parasitism. The court held that communicating the database to the public at a cheaper price is not a distinct fact.
In Football Dataco , the CJEU made totally clear that Member States cannot protect by copyright databases which do not fulfil the requirements of article 3 of the Database Directive which requires the author's own intellectual creation as the criterion of originality. If not, national laws could simply override the Database Directive and protect unprotectable databases by parasitism instead of the sui generis right although by way of the Database Directive , the sui generis right has in effect absorbed parasitism.
This state of affairs would create disharmony, and thus be totally contrary to the aim of the Database Directive , in fact any directive. What can we conclude from this overview of the French case law before and after to the CJEU rulings in ? Many of them still do not make the distinction between creation and collection of the data and more generally fail to check the object of the investment.
We have the same pattern of basic or very basic decisions on infringement in the first instance courts but without higher court decisions infirming them. This makes the French case law on sui generis right infringement unsatisfactory. Regarding the overlap between the sui generis right and parasitism, first instance courts are split while the appellate courts and the Court of Cassation are rejecting the overlap. In conclusion, over the years, French jurisdictions seem to have become acquainted with the intricacies of the sui generis right and follow the EU case law but there is room for improvement in the French lower courts.
It is not a specifically French thing however. One needs only to look across the pond and see that even appellate judges are not always good students. Both decisions fail to apply the Infopaq ruling on originality. First, is it a bad thing in the first place? It depends on the issue. On decidedly well-settled uncontroversially good EU case law, national courts should no doubt follow the EU case law. In the case of Infopaq , it is arguable that the judgment went overboard and made the law instead of interpreting it.
The InfoSoc Directive  did not harmonise the requirement of originality across the board. It reaffirmed this in the Painer decision. In fact, in Football Dataco , the Advocate General says it is. Arguably, they have no choice and are bound by it even if it makes the law. The only way out is for the EU legislature to reverse the judgment if it is not happy with it. However, what happens if national courts do not follow EU case law?
This has not yet happened in the field of intellectual property law and one wonders if it ever will So on contentious issues, it may be that competition between national courts and between national and EU courts is a good thing.