Database Protection of special rights
【Summary】 With the development of information industry to solve the increasingly urgent issue of legal protection of databases, this article analyzes the database, the origins and development of special rights, as well as its content, as well as our existing intellectual property law analysis, based on which our country in the database the protection of special rights to study the key.
Key words database, protection of special rights
With the development of modern information technology, database industry is increasingly becoming a profitable area. Profitable to attract more and more people are involved in database development, database developers, however, found that they invested heavily in the development of database products, lack of adequate protection of the law, in a legal dispute with the infringer in a disadvantageous position. The law lags behind the development of information technology has led to this result. As research in the field of intellectual property is an important theoretical issue, the legal protection of databases are becoming increasingly urgent to be one solution.
First, the concept of the database and its characteristics
The concept of a database, the European Union Directive
and the World Intellectual Property Organization definitions vary. "The EU Directive," the first time in the form of legal documents to the database to give a clear definition, "refers to the system or database is an orderly method of arrangement,
and can be by electronic or other means to access a separate stand-alone product, data or other a collection of materials. " "And the Agreement on Trade-Related Aspects of Intellectual
Property Rights" (Trips Agreement) (hereinafter referred to as
"Trips") was established copyright in the sense of the
database concept: not only in electronic form, compilation of data and information, but also in non-electronic forms of data
and compilation ?.
In our country, because the database is emerging things, most people are not familiar with it, for it has a variety of
definitions. Yu Wei Quan compiled "practical new Intellectual Property Law Dictionary" defines the database: data compilation, a kind of work. Compilation of data or other information, whether in machine-readable form or any other
form, if only because the selection or arrangement of their contents constitute intellectual creations, in their own right to be protected. Such protection does not extend to the data or information itself, without prejudice to the compilation of data or information has been the existence of any copyright. For some non-original databases are usually not subject to copyright law protection, but may also be affected because of their substantial investments in anyway when the competition laws. In accordance with the general understanding of the
technical community, the database means: "In the computer storage device associated sound data stored in a collection of ... ..." or reads: "A database is to meet a particular sector in a variety of applications require multiple users ,
according to a certain data model in a computer system to organize, store and use the data model and use of interrelated data sets. "legal profession of its defined as:" database means the system or method of an orderly arrangement of available via electronic or other means-by access to an
independent, data or other information collection; "?
Legal protection of databases is important, because it has three major features, first of all, the enormous value of its nature in the modern information society, knowledge of the
explosion produced a flood of information, on the one hand enrich people's knowledge, the other On the one hand to increase people's access to useful information about the difficulty of its own, the database will greatly facilitate
the emergence of people retrieve information. It is precisely because of the massive database, information storage and retrieval easy, fast and attract more and more widespread use of it, makes use of databases is becoming increasingly widespread, and it's great value apparent. Secondly, a huge
database of investment to develop a database must invest certain amount of money must also have sufficient technical strength, database developers to devote human and material resources, the development of the database is certainly not to
allow the public free of charge, but expect that investment will be able to be rewarded. If investment returns are not, then who is willing to engage in database development? Therefore, the law should protect the interests of investors
and promoting the development of the database industry. Third, the database is the ease of copying and infringement, making access to legal protection of databases become increasingly important. Although the development of a database to invest enormous human and material resources, but once the database successfully developed, the enormous value of its own nature, makes the person doing everything possible to be illegal copying, infringement. As the database is easy to copy, and low cost, making the database at any time there is the
possibility of replication by others. Database rights to protect their own interests people, and sometimes had to take technical measures, even at the expense of the use of pirated computer users of the database. This behavior is not conducive
to the dissemination of information, but also harm the interests of database developers.
Second, the database describes the special protection of rights
A database of special protection of rights first proposed by the European Union, in March 1996, the EU introduced the "Directive on the legal protection of databases" in copyright protection of databases at the same time, also established a so-called special rights measures and requested members to States in the January 1, 1998 before the law, regulations and administrative provisions of the way the content of implementing the directive into the Mainland. At present, the database privileges have been implemented within the framework of the EU member states. The EU directive by the special
protection of the rights of the database must be orderly arranged, and by an independent works, data or other materials, and the various parts of the organization in electronic or other means to access a collection of separate, but the electronic databases used to create or drive The
computer program does not enjoy special protection of rights. Special protection of the rights of the databases addition to the above restrictive conditions, there is a very important condition, that is, only those in the content acquisition,
testing, scheduling and other aspects of a substantial investment in the database the database can only enjoy the special protection of rights.
As the world's largest database-producing country, the
United States in order to make their own database in the European Common Market get special rights protection (EU Directive in the database has taken a special right to protect the principle of the equal protection), from May 1996 to accept U.S. House of Representatives since Three bills
relating to the protection of databases (the last one bill is H * R * 354 bills), but not because of highly controversial in the United States Congress.
In February 1996, the EU database directive, based on the database to the World Intellectual Property Organization that the special rights protection. (This approach is due to the EU considered it "the world's largest database of manufacturers outside the United States, alienation from this system does not meet the EU's long-term interests) at the same time, the
United States, unwilling to lag behind the European Union. In May 1996 World Intellectual Property Organization Committee of Experts, the United States has raised its special rights on the database protection. August 30, 1996 World Intellectual
Property Organization published the "Treaty on Intellectual Property on the database, the substantive provisions of the basic proposal" (the "Treaty Database Bill ") to the United States and Europe integrated with the contents of the two
proposals. In December 1996 WIPO Diplomatic Conference, as many developing countries and some developed countries with strong opposition, there are no" database of the draft treaty "to speak on the substantive. World Intellectual Property Organization in March 1997 once again bring together
government representatives to discuss these issues, in September 1997 World Intellectual Property Organization convened again on the protection of intellectual property information in the database to continue discussion on the
database privileges the possibility of international protection, so far, the level of international protection in the database retained only a "database of the draft treaty",
the meetings and discussions will continue in ?.
Content of special rights in the database, the EU
Directive and the United States refers to H * R * 354 bills differ greatly. From the formal point of view, although both give the right to extract from the database producers and re-
use rights, but in fact the EU Database Protection Directive
has given the rights of database producers than in the United States H * R * 354 bills a lot more. In order to balance the public interest and the interests of database rights, the European Union directives and the United States H * R * 354
Acts provide for the protection of special rights to the database limitations and exceptions, but the EU directive too much emphasis on the rights of the rights of the database, resulting in the interests of tendency of the database right balance, while the United States H * R * 354 bill will have to balance between public and private interests of science much more.
View of the above protection of special rights on the database description of special rights can be seen that the database is a separate legal system of copyright protection, and its fundamental purpose is to protect the database maker's investment in the database, however, the special rights for the existing too broad protection of database producers, the EU directive, for example, its excessive taking into account
the interests of database producers, without due regard for the public interest, which will free flow of information have a negative impact, thus affecting the EU Directive in the European Union national implementation. The reason why the
United States, a database protection program has not been passed by Congress three times, it is important One reason is that opponents argue that Data Protection Act violated the constitutional right of free speech. Reposted elsewhere in the
paper for free download http://
The interests of any law is a product of compromise, in the history of law was felt that ownership is an absolute right to exercise it without any restrictions, but in practice this concept proved unworkable in practice to prove ownership,
although an absolute right, but it is still subject to more or less the exercise restrictions, such as: the exercise of the
exercise of ownership can not be harmful to others, social and public interests. Database, special rights protection is also
true, due to the traditional copyright law protects works in the form of work does not protect the contents of the database is exactly the special protection of the rights of the contents of the database, while the contents of the database
by the producers from the public domain collection, Zhaibian come. To protect the contents of the database will be faced with the privatization of public domain data, thereby limiting people's use of information, protecting the rights of the property interests of the database must be the public use of public domain to strike a balance between the interests, rights holders to restrict the database interests are manifested in the rational use of the database
Third, China's special rights to protect the database
recommendations of the study
Although the protection of special rights on the database did not form an international agreement, only World Intellectual Property Organization published "on data of intellectual property rights provisions of the Treaty on the
recommendations of the entities" (ie, a database of the draft treaty), the U.S. database protection bill once again has not been approved by Congress, But as the world's largest producer of the database, database developers to worry about their own
interests, in particular the EU adopted the principle of reciprocity be taken to protect the database directive, the increasingly urgent to protect the special rights bill through the database of the United States Congress to impose under increasing pressure, I believe that the U.S. Congress to consider national interests in the consolidated cases, the database will be passed a special bill of rights.
In China, the special protection of rights relating to the database is currently still in the academic research
level, the protection of databases, primarily by the current copyright law, contract law, unfair competition law. But these laws are not adequate protection of databases. Many scholars have been weaknesses in the legal protection of these was the
full analysis, here not go into details, in order to increase the legal protection of databases, it is necessary for the
characteristics of the database to give special protection of rights. Trips Agreement Article 7, paragraph 1, the Council
authorized Trips study of the Trips related to new development, if the Council considers the legal protection of databases should be the international protection of intellectual property rights of the new norms, and eventually added into the Trips agreement, it will for all members of the World Trade Organization binding ?. China to the World Trade
Organization member countries in the world trade agreement negotiations have consultative powers, if China does not conduct in-depth study of the EU Database Directive, that we
will have special rights to the database in the WTO negotiations to protect the disadvantaged, it is possible to accept passively database industry in developed countries is not conducive to the development of our database development
From the current EU directives, the United States, H * R * 354 bill and the draft WIPO database treaty terms, the EU directive of the database too much emphasis on the rights of people's interests, which for many criticisms. Hence, "Database Directive" in the final provisions, since 1998 every three years, the European Commission Directive on the application must submit a report, in particular, the special protection of the rights to the database review to prove that such protection would result in abuse of dominance or other right of free competition in the pre-examine whether it is
necessary to take other remedial measures, including the establishment of a compulsory license. And the U.S. H * R * 354 bills were accused of violating the constitutional
principle of freedom of speech have not been adopted, and its essence is also a database, the interests of rights holders and the public's right to the conflict between freedom of information, data, database article draft treaty December 1996
WIPO Diplomatic Conference had been a number of developing countries and some developed countries are against, but not
engage in substantive discussion, which, while developing countries to protect their own national database industry considerations, there are some well-developed States have
different views of data protection,
To sum up, the protection of special rights for the
database, the main controversy lies in the interests of database producers and the public's right to freedom of
information. There is no doubt the legal protection of databases is a field of intellectual property problems in China, the study database the right to restrict the rights of persons and the reasonable use of the public can learn from the experience of existing intellectual property laws. China's protection of intellectual property from the current 4 France 10 cases of point of view, the rights of intellectual property restrictions, should focus on learning chopsticks for human rights law on the rights of copyright restrictions, of course, must also learn from other intellectual property laws relating to the rights of rights restrictions, does not exclude other rights holders against the database, limit the right.
In short, strengthening our protection of the rights in the database specific aspects of research, will enable China-
related databases at the international level the protection of
consultations in a good position, and can promote the development of China's database industry, there is great benefit.
Notes and References
 Tian Ying. On the legal protection of databases [J]. The executive and the Law, 2005, (2).
 Yu Wei Quan. Practical new Intellectual Property Law Dictionary [M]. Jilin: Jilin People's Publishing, 2004.79.
 Mei Zhang, Liu Bin remember. Of intellectual property protection of digital technology [M]. Beijing: Intellectual
Property Publishing House .2004.175.
 Xue Hong. Intellectual Property and E-Commerce [M].
Beijing: Law Press, 2004.250.
 Xue Hong. Intellectual Property and E-Commerce [M].
Beijing: Law Press, 2004.251. Reposted elsewhere in the paper
for free download http://