Information Property QUT 20080616 Sampsung updated accepted

8/14/2019 Information Property QUT 20080616 Sampsung updated accepted

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Information Property:

How far will the intellectual property regime expand?

GAO Fuping

Dear Professor Brian Fitzgerald, Justice James Douglas, ladies and gentlemen,

Good Afternoon!

It is a pleasure to be here to share with you some of my thoughts on in the future

of intellectual property law from the perspective of the rise of debates on whether

information could be property. My topic is Information Property: How Far will the

Intellectual Property Regime Expand?

1. Introduction: What Happens to Intellectual Property Law?

The scope of IP is always full of uncertainty. The reason is not only the fact that

IP has been always developing with the advances of technology and the evolution of

humans society, but also that there is actually no universally accepted opinion on

what the intellectual property exactly is, what should be protected as intellectual

property and what should not be, and the extent to which it should be protected by law

it.

Recent years have saw two factors that fuel these debates and gives birth to

battles for or against the expansion of IP regime all over the world. The first factor is

globalization, and the other one is the prevalence of information and communication

technologies (ICTs).As a result, the IP law is now at crossroad.

(1) Firstly, the globalizationGlobalization, arising after World War II, means economically, no country can

survive in isolation from the globalizing world, especially developing nations.

Globalization makes national legal system being internationalized.

While learning IP in law school, I was told was that one of the characteristics of

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IP was that it was its territorial limitation, and it is protected mainly by state law.

However, along with the globalization, intellectual property has increasingly become

the subject of international trade and a key component of the global economy.

Accordingly, international legal systems are essential for the protection of intellectual

property.

This has not only changed the IP legal system itself (e.g. convergence of

intellectual property law and international trade policy), but also leads to a

weakened state sovereignty. A state, individually, cant decide what is and what is not

protected, and cant set their own standards of protection (harmonizing national

treatment of intellectual property rights). An individual state is faced with

restrictions on their capacity to use property rights to solve new external problems and

becomes more and more dependent upon IP-rich states. This has created lots of

political issues between states, especially between developed countries and

developing countries. Therefore, it has been argued by some scholars that intellectual

property is rich countries new way of exploiting poor countries.

(2) Secondly, ICT or the InternetICT has begun to change our society. We are undergoing a major cultural

revolution from an industrialized society towards an information society, a radically

new form of existence.

It enhances extremely the ability of information processing, of communicationand sharing of information. Now any information can be digitalized or stored in

digital form, and any digitalized information can be transmitted over the Internet.

In other words, Information technology makes any information be digitalized,

and communication technology (e.g. Internet) makes any digitalized information

being distributed or transmitted over the Internet.

Two models:

Free access to information

Information Transaction

On one hand, the Internet maximizes the capacity for people to share

information freely, on the other hand, it makes it possible for people to sell or

purchase information over the Internet.

This means information has been becoming a commodity or product. This

information-based product is:

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Pure digital products, the buyer downloads the item without the need for

any physical delivery

copyrightable or non-copyrightable, for examples: software, music,

movies, books, any valuable information etc.

The information transaction is not a sale but licensing. Thats to say, the subject

matter not the ownership of information products, but the right of the use of

information.

Information Transaction + Information Service =Digital Content Industry

Nicholas Negroponte, in his book Being Digital, suggests:

We are passing into a post-information age from information age. Chief among

these characteristics is the major shift that has occurred in terms of wherein lies the

value and resources of society. By and large today, in every industrial country and

many developing countries, the values that define the wealth of a society are shifting

from the tangible marketplace to the intangible realm of cyberspace and digital

systems. We have moved and are continuing to move from a world culture dominated

by a focus on atoms (tangibles) to one that focuses on bits of information

(intangibles).1

We are moving from a product-based economy to an information and servicebased economy.

Question:

Commodities are entities that have intrinsic value;

Information is marketable commodities

Is what has been transferred information property?

2. How IP Law Treats Information

(1) GeneralGenerally, intellectual property is related to information, but not all IP law

protects information itself. Copyright law protect expressions of ideas, trademark law

protects goodwill through protecting symbol (mark), the patent law protects the

exclusive use right of invention, and only trade secret law protect valuable1 Nicholas Negroponte, Being Digita (1995). at 5

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information itself. In other words, information is under public domain in traditional

intellectual property law. Information is available for public. At least, it is reasonable

to say that information is not the direct subject matter of intellectual property right .2

(2) Copyright(a) Limited Scope: Not all Information Work is Copyrightable

Not only do dichotomy of idea and express and other restrictions in copyright

law protect public interests, but also there is limited scope of copyright law

protection. First, only an original work is protected by copyright law or granted

copyright. That means that not all expression of idea or information is under

copyright law governing, the fact information or works lack of originality cant

protect by copyright law; Second, many information works are excluded by copyright

law to be copyrightable work, e.g. news, statutes, etc.

(b) Dichotomy of idea and express results in the unprotectability of

information out of protection

Copyright law grants an author the exclusive right to reproduce the expression

contained in a copyrightable work, but excludes any protection for any of the ideas or

facts expressed [division between expression and content (idea or information)]. Once

a copyright work is sold in market, it is accessible for public and the copyright owner

has no right control the copy that user owns (the first sale principle). Under copyrightlaw, the information is in the public domain, e.g. information is free for the public.

ReasonInformation is public goods in nature. 3 Without law granting right, it is difficult

for a person to privatize information and to protect it as his own things. (We, as users,

are not able to own information like we are able to own land or car. Information is

non-excludable and non-rival, without law granting right, information is difficult to

exclude anyone from enjoying its benefits, and one persons use does not diminish its

usefulness to others)

For reason to provide an incentive to create works, law was created to grant

authors private property right (named copyright) for a period subject to restrictions in

law; Such limitation or restrictions preserves information as "public good" by

promoting public access to creative works. The restrictions in copyright law include:

2 In the words of Peter Drahos, however, "Intellectual property is a form of private sovereignty over a primarygood - information." Peter Drahos, "Decentring communication: the dark side of intellectual property," in Tom

Campbell and Wojciech Sadurski (eds.), Freedom of Communication (Aldershot: Dartmouth, 1994), pp. 249-279,

at p. 274.3 Ejan Mackaay, Economic Incentives In Markets For Information and Innovation, 13 Harv. J L & Pub. Poly867(Summer 1990), at 880 .

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(1) limited duration, after that time, the work enter into public domain;

(2) the idea/expression distinction: ensuring information or idea in public

domain;

(3) the fair use doctrine: granting public reasonably use copyrighted work;

(4) the first-sale doctrine: limiting copyright owner right of controlling use of

their work after the first sale.

These restrictions in fact grant public or user rights or privileges for the progress

of education, science and research, for freedom of speech in general, and for the

development of new, value-adding information goods. So copyright law is not merely

grant copyright owner private right, it is an artful arrangement between rights of

copyright owner and rights of the public. So James Madison concluded that copyright

represented a unique nexus wherein the public good coincided with the interests of the

individual.4Copyright is a useful adjunct to information policy.5

(3) Challenge arising from ICT or InternetICT has created a new revolution in how information is created, stored,

reproduced and disseminated; and with that has come new challenges to intellectual

property and how to protect it.

ICT makes the privatization of information or commodification of information

possible. Information is becoming commodified in this digital age.

DRM (Digital Right Management)

DRM is in fact a security measures to protect copyrighted material from

unauthorized use. Encryption, digital watermarking, and electronic fingerprinting

technologies etc. are used to limit use and track unauthorized copies distributed in

digital form. DRM or TPM has been recognized by many countries for copyright

protection function.

But, DRM technology has the potential to override copyright law. DRM

technologies could limit the access of the public to information and cultural goods.

Because it make possible for copyright owner to control the content of copyright work

that otherwise is available to public.4 See Joshua S. Bauchner, Globalization and Democratization: The Reclaiming of Copyright, 4 Tul. J. Tech. &Intell. Prop. 93, 93(Spring, 2002). There are similar assertions proposed by modern scholar. See e.g. See PETER

JASZI, TOWARD A THEORY OF COPYRIGHT: THE METAMORPHOSES OF "AUTHORSHIP", 1991 DukeL.J. 455(April, 1991)(On the one hand, copyright aims to promote public disclosure and dissemination of works

of "authorship"; on the other hand, it seeks to confer on the creators the power to restrict or deny distribution of

their works. at 463).5 See Jessica Litman, Copyright and Information Policy, 55 Law and Contemporary Problems 185, 186-87 (Spring,1992).

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Furthermore, DRM make it also possible to privatize or propertize the non-

copyrightable information work. The owner or controller of the information could

make money with licensing. Example is licensing of non copyrightable database.

It is clear that technical protection mechanisms currently being explored aresimilarly a two-edged sword.

Information licensing: Information as subject matter

Another legal measure is licensing-----contract.

License as independent a Method of Information Product Transaction

whatever copyrightable or non-copyrightable work

License as a Legal Arrangement between Information Creator and User so

that license instead of copyright law defines users rights.

Licensing as a method of distribution of copy, actually help licensor evade the

first sale doctrine applying to licensee. The license makes copyright owner own not

only copyright, but also information itself so that it put public access to information

under control by controlling copying.6As a result, the balance between the author and

the public under copyright law has been broken.

Furthermore, the commodification of information is being explicitly encouragedby legislation that recognizes the DRM and Licensing.

Therefore, some commenters become concerned on legitimizing information

license:

The risk is that the contractual format for marketing information makes it

possible for the industry to write its own copyright law, in other words, to privately

legislate its own intellectual property rights.7

(4) SummaryThere is increasing needs to effectively protect valuable information against

6 See, generally, National Academy of Sciences, The Digital Dilemma: Intellectual Property in the InformationAge. Available athttp://www.nap.edu/html/digital_dilemma/ (visited on May 15, 2003).7 See Gail E. Evans, Opportunity Costs of Globalizing Information Licenses: Embedding Consumer Rights withinthe Legislative Framework for Information Contracts, 10 Fordham Intell. Prop. Media & Ent. L.J. 267, 303-04

(Fall, 1999). See J.H. Reichman & Jonathan A. Franklin, Privately Legislated Intellectual Property Rights:Reconciling Freedom of Contract with Public Good Uses of Information, 147 U. Pa. L. Rev. 875 (April,1999), Part

I.C.3 (describing non-negotiable licenses as equivalent to private legislation); see also Robert P. Merges,Intellectual Property and the Costs of Commercial Exchange: A Review Essay, 93 Mich. L. Rev. 1570, 1611-13(1995) (framing contracts of adhesion as "private legislation"); cf. Robert P. Merges, The End of Friction? Property

Rights and Contract in the "Newtonian" World of On-Line Commerce, 12 Berkeley Tech. L.J. 115 (1997)[hereinafter Merges, The End of Friction?] (discussing the increasing importance of low transaction cost contractsin the licensing of digitized intellectual property).

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http://www.nap.edu/html/digital_dilemma/http://www.nap.edu/html/digital_dilemma/http://www.nap.edu/html/digital_dilemma/http://www.nap.edu/html/digital_dilemma/


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unauthorized interference and use. We are encountering conflicts of different values

so that it is up to us to make decision. On one hand, we need to protect investment in

creation, distribution of valuable information through proprietary right. On the other

hand, free use and equal access to information, as a fundamental social value, must be

focused and maintained.

To sum up, with the application of ICT and the Internet for information

distribution, two legal problems are raised:

Information in copyrightable work is being privatized, that balanced

arrangement has been and is being broken.

Non-copyrightable information works are being privatized or propertized

and transacted over the Internet.8

The balance must sustain the open discourse that defines a free culture and a

vibrant political system, but also sustain the investment and economic return that must

occur for the resources to be created, disseminated, and relied on for future

development.9

We need to look for new balanced legal system to solve the confliction.

3. The Needs for Information Protection: Cases Studies

Information product-database is everywhere! Database exists in all industries and

entities. Therefore, the problems are: (a) Is it possible to adapt traditional doctrines to

regulate the changing forms of authorship; or should we create new forms of

intellectual property rights to protect valuable information products?

(1) Case Study 1: Protection of a List of ChinesePublishers

Mr.Wang Vs.China Encyclopedia Publishing House

Defendant the Encyclopedia published a book Video and Radio, Book,

Newspaper Publisher List China, which used some parts of the book 10 Thousands

Publisher List of China on which Mr.Wang has copyright.

In the case, the court held, Mr. Wang has no copyright on the list of publisher

(including name, address, contact information, etc.) for lack of originality, but Mr.

Wang has right to harvest his seed for his efforts and money investment. Based on

8 For example, some government-generated information is turned over to corporations that then sell it to whomevercan pay. Publicly funded information is "privatised" and thus not freely available.9 see Raymond T. Nimmer, Information Law West Group (2001), at 1.02[2].

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the general principle of civil law legal interest shall be protect by law, the court

made judgment that Encyclopedia should be liable for infringing Mr. Wangs

proprietary right in his book.10

This is a famous case that sweat of the brow was accepted in fact dataprotection in China. It shows the ability of judges to make law in a civil law system.

(2) Case Study 2 Project Database ProtectionHuaXinJie Investment Consulting Company(the Company) Vs. Mechanical

Industry Research Institute (the Institute) 11

The Company created a database that collect national construction project

including project are processing and will be launched. The items include such

information as the projects title, location, constructor, investment amount, etc.

In September of 1998, the Company started to sell the database. Defendant the

Institute purchased the database. The Institute published project information in

Business Opportunity Column of Bidding and Market Monthly Magazine, then

published monthly separate issue, named Project Information of China, which

include title, purchase lists, constructor, contact information, etc. of each project.

About 90 % of the information comes from the database.

The Company brought litigation against the Institute for copyright infringementon the database.

The Institute claimed that the Company has no any copyright in its database for

lack of originality. Project Information of China is compiled by the Institute according

to its standard and items from the information collected from different sources

including the plaintiff.

Judgment: the database created by the Company is not a work covered by

copyright law and has no copyright. The reasons are: project information is

information belonging to public domain that approved and published by various

authorities, and item list is also the common lists describing a project, therefore the

content and compilation of the database is not original. The Company has no any

other right to the database although the Company has invested labor and money in it

according to current law in China.

Furthermore, there is no evidence that prove there is competition relationship

between the Company and the Institute, according to the judgment, therefore the court

refused the claim of the plaintiff that the Institute constitutes anti-competition.

10 1996 11(2001)33

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The judgment is arguable. At least it shows that there is uncertainty concerning

whether and how to protect the fact database. The protection should be based on

copyright law, unfair competition law or civil law?

(3) Case Study 3: How to Protect Equity DataShanghai Stock Exchange (SSE) Vs. FTSE Xinhua Index Limited (FXI) 12

FXI specializes in creating innovative indices for the Chinese market. FXI has

signed the Equity Data Licensing Contract (the Contract) with the SSE, which allows

FXI to use the equity index to launch derivative products. Based on the security

trading data of Shanghai Stock Exchange and Shenzhen, FXI creates the FTSE

Xinhua China A50 index futures, which will be listed in Singapore Stock Exchange

SSE brings a lawsuit against FXI for infringing on intellectual property and

breaching contracts. Whether SEE has right to license FXI to use the data was debated

in whole procedure, which means what right SSE has? Whether SSE has IPR or some

similar property right?

The defendant claimed that the plaintiff has no any intellectual property right to

equity data because it is published to the public and such has no right to license the

defendant to use it. So defendant filed an anti-claim to require court repeal the clause

in the Contract because it is illegal or unequal.

Judgment: the Contract entered into between SSE and FXI is effective and both

parties should implement it loyally. In this sense, the FXI broke the clause in the

contract: without permit from the SSE in writing, the FXI has no right to allow the

other party to utilize the data that the FXI acquire according to the Contract. Based

mainly on this reason the Court made a judgment that the Contract should be

terminated for the breach of the FXI and the FXI should compensate the SSE USD

20,000.00 for its breach.

The FXI appealed to the First Middle People's Court of Shanghai and the claim of

the FXI was rejected by the Court. 13

The favorable judgment of the case is based on the contract. However, if there is

no contract, it is difficult to stop the FXI to use the published data. Due to this reason,

the Shenzhen Stock Exchange has not filed the litigation to the FXI.

12

(2007)() 2 13(2007)() 2

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4. Possible Solution

Therefore, concerning the non-copyrightable information product protection,

there are three possible solutions:

(1) copyright: expand the scope of copyright or lowering threshold of

originality to make any information work (or product) protect. Formerly,

in United Kingdom and Ireland, non-original databases was qualified for

copyright protection under the sweat of the brow regime; there was

catalogue rule in Scandinavia countries.

(2) Sui generis right or database right: sui generis right, invented by EU

Directive in 199614, grants a creator of a database a right against

unauthorized extraction of the contents of a database for a term of

fifteen years from the date of creation of the database. It is a separate

intellectual right in parallel with copyright.

(3) Anti-competition Protection or Business Torts: it is common practice

database protection in U.S. and has been proposed as a bill in House of

Representative (H.R. 3261)15; H.R. 3261 seek to prohibit the

misappropriation of certain databases (e.g. to take a "quantitatively

substantial" part of the information in a database) and make it

commercially available in the same market without the authorization ofthe database owner if the database was created and maintained through

"substantial expenditure of financial resources". Having attributes

similar to the Database Directive, the bill grounded in unfair

competition principles as a complement to copyright, rather than a new

form of sui generis protection

The common foundation of the above solutions is the principle of sweat of the

brow or protection of investment.

Which one is better?In December 1996, the World Intellectual Property Organization (WIPO), held a

diplomatic conference to discuss changes to the Berne Convention involving three

14 Directive 96/9/EC on the Legal Protection of Databases (the Directive) by the European Union (EU)15 the Database and Collections of Information Misappropriation Act (H.R. 3261) in 2003; there also anotherbill,Consumer Access to Information Act(H.R.3872), submitted and discussed.

Since 1996 (EU Directive issued), there were several bill following the EU Directive was proposed in 104 th, 105th

, 106th, 108th Congress, but there no any bill has been passed. Former bill are:

104th Congress the Database Investment and Intellectual Property Antipiracy Act of 1996(H.R. 3531)

105th Congress Collections of Information Antipiracy Act(H.R.2652)106th Congress: Collections of Information Antipiracy Act (H.R. 354) and Consumer and Investor Access to

Information Act, originally introduced (H.R. 1858)

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proposed treaties. One of them is Database Treaty16. The Treaty was in an attempt to

introduce the sui generis right in EU Directive to international IP system. Although

the agenda also included negotiations on a database treaty, the WIPODraft Database

Treaty was not passed, even not discussed in-depth. Until today the Database Treaty is

still not put on the agenda of WIPO.

Frustration of the Draft Treaty shows that there is no common understanding on

the necessity of creating a sui generis system to protect databases outside of the

copyright framework.

Although developing countries had negative attitude on the Database Treaty, the

main opponent is USA. There is strong opposite voice against any database right in

national or international level. The reasons from opponents are: constitutional

limitation on Congress Legislation Power of IP protection. Moreover, it is believed

that the freedom of speech and flow of information is a foundation of modern

civilization society.

In 2005, COMMISSION OF THE EUROPEAN COMMUNITIES issued First

evaluation of Directive 96/9/EC on the legal protection of databases.17 According to

the Report, the economic impact of the sui generis right on database production is

unproven. The empirical evidence, at this stage, casts doubts on this necessity for

thriving database industry. On the other hand, there is no similar legislation. USA

continues to be the leading power for the future of database industry. This empirical

result, at least, cut down the favor of adhering step of EU and transplanting theDirective.

With regard to harmonization effective, although all 25 Member States have

transposed the Directive into national law,18 national courts and authorities have had

difficulties in applying the Directive. There have been certain controversial judgments

throughout the Community in relation to the notion of substantial investment19.

Other controversial judgments concern spin-off databases that is databases which

are by-products of a main or principal activity - especially where the database is a

16 The other two are copyright treaty and a treaty on the production and performance of sound recordings.17 See, COMMISSION OF THE EUROPEAN COMMUNITIES: DG INTERNAL MARKET AND SERVICES

WORKING PAPERFirst evaluation of Directive 96/9/EC on the legal protection of databases Brussels, 12

December 200518 Germany, Sweden and United Kingdom met the deadline of implementation (1 January 1998); Austria and

France adopted in 1998 laws whose provisions apply retro-actively as of 1 January 1998. Belgium, Denmark,Finland and Spain implemented in 1998; Italy and the Netherlands in 1999; Greece and Portugal in 2000; Ireland

and Luxembourg in 2001. Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakiaand Slovenia implemented between 1999 and 2003. Also the EEA countries (Iceland, Lichtenstein and Norway)

have implemented the Directive. See COMMISSION OF THE EUROPEAN COMMUNITIES: EVALUATIONOF DIRECTIVE 96/9/EC ON THE LEGAL PROTECTION OF DATABASES (Brussels, 9.8.2005), footnotes 13

at 10.19 See, for instance, District Court of The Hague, 12 September 2000, NVM v. De Telegraaf, where the court ruled

that the costs of collecting and maintaining up-to-date information concerning several thousands of real estate

properties amount to substantial investment; see, contra, Court of Appeal of Dsseldorf, 29 June 1999, where thecourt held that there has been no demonstration of substantial investment in a database containing informationpertaining to the construction of buildings.

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single source database.20 Another area of controversial case-law concerns the

exploitation of on-line databases and Internet-related activities such as hyper

linking or deep-linking using search engines.21

On the 9 November 2004, the ECJ handed down its decisions in four casesdealing with the database sui generis right.22The ECJ in November 2004

significantly curtailed the scope of sui generis protection.23

The effect of the ECJs judgments is to narrow database rights, particularly in

relation to the subject matter of protection. No database right is available where

investment is solely directed at creating the contents of a database. Only where you

can demonstrate that you invested substantially in obtaining, verifying and presenting

contents independently from their creation, can you be qualified for protection.

In summary, there is no convictive reason to persuade people to accept the

directive as a model in database protection. Maybe, business torts or anti-competition

is more feasible and acceptable.

5. Conclusion

As neutral communication tool, ICT and the Internet, on the one hand, free

information and promote innovation and productivity. On the other hand, they create a

new industry (data industry) which is profiting from collecting, processing anddistributing information commercially. As commercial activities, investment and

effort in database creation look for return, and this then requires law protection

against misappropriation of the information. It is obviously necessary to grant some

proprietary right to database creator.

However, we must another thing in mind. The freedom of information flow and

the free access to information are also important to our culture, wealth-generating

activity, and the progress of society.

20 The spin-off theory has been developed by the doctrine and case law of certain Member States (in particular,the Netherlands); under such theory, spin-off databases do not enjoy sui generis protection.21 Linking occurs when a connection is made between pages within a single web site or another website by the useof hypertext mark up language i.e. highlighted to identify the link. Clicking on a link transfers the user from the

website to that of the linked page and the Uniform Resource Locator (URL). A "deeplink" bypasses the homepageof the URL to link directly with embedded web site pages. It is noteworthy that some national judges have recently

questioned (Algemeen Dagblad a.o. v. Eureka, President District Court of Rotterdam, 22 August 2000) or haverefused (Paper Boy, German Federal Court of Justice, 18 July 2003) the applicability of the sui generis

protection to newspapers.22 Four cases are: Fixtures Marketing v Veikkaus, Fixtures Marketing v OPAP, Fixtures Marketing v Svenska Spel

and The British Horseracing Board v William Hill23 The ECJ agrees and adopts a view that any investment in creating data is to be disregarded in determining

whether a database maker has made a substantial investment in obtaining, verifying or presenting the contents ofthe database. Based on this judgment, the Court held that the substantial investment must be in the obtaining,

verification or presentation of the contents of a database and not in the creation of the data.

This is very key point in ECJ Judgment. The ECJ held that the investment in the obtaining, verification orpresentation of the contents of the database is distinguished from the investment in the data itself which cannot betaken into account when considering whether the investment has been substantial.

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Many scholars, including me, agree that the development of the information

industry in the digital era is in demand of a new form of protection for database

producers. Whether or not information can or should be treated as property, we must

construct a basic legal order for database industry or content industry. The balance

between the freedom of information flow and the profits-chasing informationtransaction in the current digital environment is an essential policy issue while making

intellectual property law and information law in this information century.

It is also obvious that the desired range and balance of protection depends on a

lot of social factors, such as industry situation in database services, the culture of the

country, legal systems, ideologies, political and societal systems, and others. I argue

that the balance should be defined and implemented by individual state, and if we

look for any international measure (such as database treaty), we must consider

differentia and diversity of each state.

In summary, if we are going to create a new intellectual property regime in

international level, there are two balances that must be stricken. Firstly, the balance

between what should be protected and what should not be; Secondly, the balance

between developing and developed countries. It is difficult to figure out an easy

solution; however we have no other choice.

Thats all what I want to talk today. Thank you very much. Please feel free to ask

questions.

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Material

EU Case

Fact: the British Horseracing Board (BHB) organises horse races and maintains a database

which comprises a lot of information including the names of the horses, the date, place and time of

each race. William Hill (WH), a UK bookmaker, took information from BHBs database for use

on its betting web site. BHB brought an action in the English Courts for infringement of its sui

generis right in its database.

The expression-- a substantial investment in either the obtaining, verification or presentation

of the contents of a database in Article 7(1) of the Directive must be understood to refer to the

resources used, with a view to ensuring the reliability of the information contained in that

database, to monitor the accuracy of the materials collected when the database was created and

during its operation. The resources used for verification during the stage of creation of materials

which are subsequently collected in a database do not fall within that definition.

The resources used to draw up a list of horses in a race and to carry out checks in that

connection do not constitute investment in the obtaining and verification of the contents of the

database in which that list appears.

The ECJ agrees and adopts a view that any investment in creating data is to be disregarded

in determining whether a database maker has made a substantial investment in obtaining, verifyingor presenting the contents of the database. Based on this judgment, the Court held that the

substantial investment must be in the obtaining, verification or presentation of the contents of a

database and not in the creation of the data.

The consequence is that BHBs databases are not protected by the sui generis right and

therefore the betting companies do not need to pay licences fee to extract or re-utilise the data.

By making a distinction between created and obtained data, the ECJ embraces one of the

main arguments underlying the so-called spin-off doctrine, which has been particularly popular

among Dutch courts and commentators.24According to the spin-off doctrine, the database right

accrues only in investment that is directly attributable to the production of the database. There

would appear to be no reason to grant protection to data compilations that are generated

quasiautomatically as by-products of other activities.25

24P. Bernt Hugenholtz, Program Schedules, Event Data and Telephone Subscriber Listings under theDatabase Directive - The Spin-Off Doctrine in the Netherlands and elsewhere in Europe, paper presented

at Eleventh Annual Conference on International IP Law & Policy, Fordham University School of Law, New

York, 14-25 April 2003, available at http://www.ivir.nl/publications/hugenholtz/spinofffordham.html;

D.J.G. Visser, The database right and the spin-off theory, in: H. Snijders and S. Weatherill (eds.),

Ecommerce

Law. National and transnational topics and perspectives, Kluwer Law International, 2003; E. Derclaye,

Databases sui generis right: should we adopt the spin-off theory?, EIPR 2004, 26(9).25 Stephen M. Maurer, P. Bernt Hugenholtz and Harlan J. Onsrud, Europes Database Experiment, 2001 Science789-790, see note 11 Mark J. Davison & P. Bernt Hugenholtz: Football fixtures, horse races and spin-offs: the ECJ

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Some view intellectual property rights as the necessary appurtenants to products

of individual creativity; others consider that intellectual property rights have

developed into a tool to serve economic and monopolistic interests of corporations

and information-rich states; still others view them as an outmoded concept having no

relevance in a digital age.26

In the Future of Ideas (2001)27, Lessig argued that the expanding scope of

intellectual property protection threatens the Internet as an innovational playing field.

Professor Litman also argued that copyright law is too complicated and too restrictive

Litman (2001). 28 Both authors agree that the overprotecting intellectual rights

nowadays cause blocked creativity.

ICT created new opportunities to expend information and knowledge in oursociety. However, this break through is hindered by legal and authoritarian protections

of intellectual property. Social and technological opportunities created by ICT are

threatened by far reaching IPR protections and may slow down the overall creation of

knowledge in society.

General Meaning of Information

Information is a resource on its own, as well as an asset to others. It falls within

the resource hierarchy which starts with data, which leads to information, coming

together as knowledge, and resulting in wisdom.

Data can be defined as the undigested observations, or unvarnished facts.

Information follows as the organized form of data.

domesticates the database right. European Intellectual Property Review (EIPR) 2005, Issue no. 3.26 Kim Nayyer: Globalization of Information: Intellectual Property Law Implications

http://www.firstmonday.org/ISSUES/issue7_1/nayyer/27 Lessig, L (2001), The Future of Ideas, Random House, New York28 Litman, J, (2001), Digital copyright, Prometheus Books, Amherst, New York

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Knowledge is then the organized information which is internalized by its user

and integrated with other bits and fields resulting from experience, study, or intuition.

The final step is the integration of the knowledge into wisdom, which is

information which has been made useful by theory relating the bits of knowledge toeach other (chart).

Wisdom is a source of innovation or creation activities, from which IP comes

Data may be transformed into information, which, in turn, may be transformed

into knowledge and wisdom.

In this common sense, information is any information spread in the society as air

in the sky.

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Information Property QUT 20080616 Sampsung updated accepted

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