A New Outlook on the Economic Dimension of the Database Protection Debate

Abstract

This article addresses the contention that if the law does not protect database producers, these producers will not have an incentive to continue to create these works and, in turn, a market failure in the database industry will occur. The article begins with an overview of the main economic dilemma of incentives to create versus dissemination and use of raw data. Next, it examines the conflicting empirical evidence to date, some of which suggests that there is a problem requiring remedy and some of which suggests the opposite, arguing that such evidence is inconclusive in resolving the dilemma. The article then examines whether additional intellectual property protection is needed, even if market failure exists. It advances the argument that there are many existing, yet overlooked measures that make such protection redundant. First, it points to the de facto “protectability” of databases. Second, it discusses available private market and technological mechanisms. Finally, it examines and provides an updated overview of and some new insights into various legal mechanisms that provide additional protection to databases. The article concludes that the protection of databases is best done by advancements in technology, and any legally-created protection will only protect the financial interests of certain members of the industry for a limited time.

Keywords: intellectual property law, database protection, economic analysis