Can and should misappropriation also protect databases? A comparative approach

Part of book or chapter of book English OPEN
Derclaye, Estelle (2007)
  • Publisher: Edward Elgar
  • References (71)
    71 references, page 1 of 8

    1 Lecturer in Law, University of Nottingham.

    2 Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, OJ L77/20, 27.03.1996 ('the Directive').

    3 Two other types also exist. There is a posteriori over-protection if the intellectual property protection has expired but the database can still be protected against parasitism and there is negative over-protection when no intellectual property protection is available at all but the action for parasitism is. These are examined in the author's thesis (2008), The Legal Protection of Databases: A Comparative Analysis, Cheltenham, UK and Northampton, MA, USA: Edward Elgar.

    4 The terms, the 'theory of parasitism', 'tort of parasitism' and 'parasitism' will be used interchangeably. Parasitism is also commonly known as slavish imitation, slavish copying or misappropriation depending on the country. For the purposes of this

    12 W. Cornish (1974), 'Unfair competition and the consumer in England', IIC 73, at 74; Dworkin above fn. 10, at 242; F. Beier (1985), 'The law of unfair competition in the European Community, its development and present status', IIC 139, at 156; Robertson and Horton, above fn. 9, at 568.

    13 The only exception is misleading advertising which the United Kingdom had to implement due to the relevant European Directives, see supra.

    14 See below section 2.2.1.

    15 Burns above fn. 10, p. 311; Robertson and Horton above fn. 9, p. 568.

    16 Burns above fn. 10, p. 311; Cornish, William and David Llewelyn (2003), Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights, 5th edn, London: Sweet & Maxwell, p. 18, nn. 1-22. Courts believe this power belongs exclusively to Parliament.

    17 G. Dworkin (2004), 'Unfair competition: is it time for European harmonisation?', in D. Vaver and L. Bently (eds), Intellectual Property in the New Millennium: Essays in Honour of William R. Cornish, Cambridge: Cambridge University Press, 175, at 177.

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