Analysis on the legal protection of databases

Computer technology and network technology to lead mankind into the Information age, one notable feature of the Computer Application for further in-depth and wide extension, which also makes the data in Computer Applications in the increasingly important status and role. Past data in the Computer system the program is only accessories, and now the system mostly as the main data structure and data, the program has been relegated to subordinate status. Database is an important data structure and data carrier, the paper aims to initiate, on legal protection of databases for some of the relevant issues.

First, the connotation and extension of the database

The term comes from English Database database, referred to as DB. As the name suggests, the database is stored in a Computer data "warehouse." Warehouse established outside the storage media, such as disks, CDs, etc. (1)

Some scholars believe that the database is a collection of data, it has a certain form of organization and stored in a unified storage media, it is the variety of data integration and can be used to share. (2) <<English Computer Dictionary> > Notes: "database is stored in a computer storage device on a reasonable collection of interrelated data." (3) U.S. intellectual property textbook that "the database is stored in accordance with modern fast way to retrieve Information in computer ordered collections. "(4) European Parliament and European Council in 1996 enacted the <<directive on legal protection of databases>> (Directive of the European Parliament and of the Council on the Legal Protection of Databases said:" Database refers to the system, and orderly way of data or other materials arranged, and the performance by electronic or other means of independent work or collection of Information. "definition of the database, which is more comprehensive presentation, revealing the database three layer of meaning:

First, the database is a work, a collection of data or other materials,

Second, the database is an organized and orderly collection of

Third, the database works, data or other materials available through electronic or other means for visitors to browse and be separate.

Under this definition, reflect the current discussion of many Law books, see jurisprudence for the existence of a certain misunderstanding of the concept:

(A neglect of non-electronic databases

European Union "Database Directive" that the database can be through electronic means to the performance, but not limited to the database only electronic databases, the database can also be other ways.'s Electronic database is a process, before the fully electronic , may exist in other forms, such as phone book codes, promo table, transportation schedules until the encyclopedia. Some databases may not for the establishment of electronic and these non-electronic form of the scope of the database is still a database, but we generally are discussed in an electronic database by default, this is no exception.

(2 confusion databases, data and database management systems

Database system (Database System, referred to as the DBS is a complex system, it is a database, software, hardware and users constitute the system (5) database is the data carrier, the dispersed arrangement of data according to certain organized structure, is the core of the database system and manage objects. database management system referred to as the DBMS, the user request the various operations on the database, by it to completion. all computer languages ​​are dedicated to database processing algorithms, DBMS can also be a variety of like, for the same database, you can use different DBMS software to manage, so the database protection and the protection of the DBMS is completely different from the two propositions.

Second, the database protection Analysis

In order to safeguard their legitimate rights and interests of database producers are trying to protect the database from the technology channel development of the industry, but the rampant anti-conservation actions and technical measures and sanctions the cost of expensive, forcing the international community and seek legal means, in particular IP Act to protect the economic interests of database producers. visible, database protection can not be general talks.

(A database of technical protection is not the legal sense of protection

Database technology protection, mainly refers to the electronic database security, integrity, concurrency control and data recovery. Technical means of protection, the focus is on how to protect the internal structure of the database will not be destroyed, whether such damage is intentional, negligence, or accidents at this level, in fact, does not involve too many legal relationship, it does not take into account because the database of illegal copying, dissemination, use of legal problems, so in the academic discussion about the database will not be generally protection, but the talk is clear on the technical level or on the legal level.

(Two databases means of legal protection

For the legal protection of databases, can be summarized as the following four methods:

1 database copyright protection

2 databases to protect against unfair competition Law,

3 Database of contract Law to protect,

4 Database of special protection of rights, this right belongs to a special property, for the content of the database is the exclusive right to exist. (6)

Third, the various means of legal protection of databases Analysis

(A copyright protection method of the database, database producers may gain some degree of copyright protection, but its difficulties and shortcomings is also very obvious

1. Originality standard is not clear resulting in a large database because of its lack of originality and be excluded from copyright protection system in addition

The original choice of materials is very difficult to do. Data material selection criteria or the performance of a particular theme, or the performance of the author's subjective likes and dislikes and feelings, or the performance of the user's needs, these do not exist originality. Material arranged Originality is equally difficult to achieve. database management system (DBMS is a computer program, because their creators into thinking you can by software copyright protection is justifiable for the database, the driver usually less determined data library and the corresponding relationship between the structural arrangements, originality is difficult to reflect.

(2) to protect data in the database means that the copyright dilemma

The only way to protect copyrighted database compilation of the work as a whole, does not extend to constitute a database of the data material, the database does not belong to a large number of materials, copyright Law requires the "express" (Expression, can not be effectively protected. Conversely, if the copyright is not only protect the structure of the database, but also to protect the data, material, it will again fall into another difficult situation: It may be given telephone numbers that are not as protected materials to any copyright, copyright protection and may even be extended to the intellectual level , contrary to the basic principles of copyright Law.

(Two anti-unfair competition law to protect databases also have limitations

Anti-Unfair Competition Law to enjoy under the protection of database producers against unfair competition rights, this right does not give the database the exclusive producer of these data is the right material, so that others can use any non-commercial purpose of the database producer collect, collate the data material, can also be for commercial purposes through their own efforts to collect, collate data from the same material similar database. comparison of national anti-unfair competition law, as the database producers have no right to prohibit others to collect, collate the same data material the same database, so their rights is relatively weak. the scope of protection against unfair competition law and standards with uncertainty, law enforcement agencies for acts of unfair competition that standard is difficult to determine, if the database producer has not fully grasp do not dare to defend their legitimate rights and interests.

(C) the use of contract law can permit and restrict others from using the database, but there were still drawbacks

First, the database producers have specific rights not clear, and the second, contract law can resolve the dispute between the parties can not contract other than the third person to deal with violations. That is, if others use various means to access the database data, materials, database producers can not stop their behavior in accordance with contract law, and, if others plagiarism through the proper use of the database and the database and presentation of the selection criteria used in their production database, contract law has no alternative, only as a database producers to strengthen an effective means of self-protection only.

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(D database big controversial special protection of the rights

Supporters argue that such a database can be adequately protected the interests of investors, opponents argue that ignoring the public interest, sources of Information will lead to monopoly and hinder the dissemination of Information. The special protection of the rights and database copyright protection standards and different principles, which protects only There originality of expression, ideas are not protected, while the former is based on the so-called "sweat principle", as long as the database producers have invested in the production process, the right to control the use of these data to others.

Fourth, the legislative proposals for database

China as a developing country, is still a relatively developed countries, "information poor country", but need to strengthen the legal protection of their database products, should also actively participate in the international system of legal protection of databases to develop and maintain their own use of data resources rights under the current China's actual situation, the author of this issue to propose the following:

(A restricted right to information in order to replace the copyright protection of databases

Database on the difficulties in copyright protection, the United States, European Union and World Intellectual Property Organization are exploring the database in addition to copyright law on the outside of the special protection of rights, namely the aforementioned final form of protection, which in essence is about the protection of the right information .

Database using information rights protection, has its unique advantages. Copyrighted works to have the original conditions, the right to information object does not require this, and intangible property of non-work (such as the patented technology can also enjoy the right to information, the database of course reasonable protection, copyright protection is a form of work, the content is not protected, and information rights to protect just the opposite, to protect the information relevant content for the database, the data content can be explicitly protected.

European Union "Database Directive" specifies the information content of the right: the right to have two database information content, that is, the right to extract and repeated use of power. Extract is taken in any form or by any means, the data content in whole or substantial part of the permanent or being reproduced to another carrier. repeatedly refers to the use of sales copy, rent, or other transmission network database in whole or in substance in any form available to the public. the right to information are the exclusive database, according to "instructions "provides a database of information protection of the right period of 15 years, since January, finished the year calculated from (7)

However, the database is a delicate relationship between the two production and use of the database is the digital material, which does not affect the database producers and users of balance of interests between the database system of legal protection must be balanced the interests of both the product. (8) The special rights of the database to a reasonable use of threatening the security of the system, so it is necessary to certain restrictions, limited ways to refer to the specific relevant provisions of the Copyright Act, the following categories:

1 To illustrate, explain, for example, comments, criticism, teaching, research or analysis purposes, dissemination or extract a database of reasonable conduct,

2 In order to educational, scientific or research non-commercial purposes, dissemination or extract the contents of the database behavior, but not on the database of the basic product or service market or cause significant damage to the relevant market,

3. Spread a single database or extract information or content of the database of non-substantial part of the act, but repetitive or systematic malicious behavior is not listed,

4. Just to verify the accuracy of the information transmitted or recorded information provider behavior,

5 government departments for implementation of the survey, protection or communication intelligence activities or extract information about the behavior.

(B improve the anti-unfair competition law

Anti-Unfair Competition Law in the status of legal protection of intellectual property rights is extremely important, it is the foundation of intellectual property law, intellectual property law is the growing point, we can take full advantage of its features to complement the specific principles of intellectual property law insufficient (9) do not have rights databases, in addition to protecting the right to information means, you can also use <<Anti-Unfair Competition Law>> full range of legal protection given to the database from our existing <<Anti-Unfair Competition Law >> Chapter cited unfair competition point of view, "free rider" behavior does not seem to be included. Therefore, we should pay attention to "free rider" various acts of illegal copying of the database, do not spread into the anti- While adjustments within the scope of competition law.

(C actively participate in international legislation database

Almost all developing countries, poor countries information, information asymmetry and widening gap between rich and poor EU "Database Directive", the U.S. H · R · 3531 Act and the WIPO diplomatic conference to submit a "draft treaty database" almost unanimously To implement a database of "special rights protection", implementation of the information that the database right protection, extend the protection of the database constitutes a database of materials. China is a member of WIPO, but also members of the WTO, we must clearly realize that once " special protection of rights "was included in the international intellectual property protection system, although the interests of database producers to a certain degree of protection, the developing countries including China will be more difficult to obtain information on the economic development of these countries will also have some adverse effects.

China should actively participate in the database of international legislation, improve the system of legal protection of databases, between efficiency and equity for a compromise, taking into account not only the database producers to pay for labor, but also to ensure that the database competitors, the user reasonably the right of access to database information, to achieve maximum efficiency in the production database and database product dual goals of fair use.





Notes:
(1) Wu Baoguo, Sun Guoguang, etc.: <<Electronic Information Application Basics Series - Database Application ", Tsinghua University Press, December 1998, 1st edition, p. 4.

[2) XU Jie Pan, Wang monetary policy: <<Database System Introduction>>, Nanjing University Press, February 1997, 1st edition, p. 1.

(3) Zhang Ping: <<United States copyright protection in the judicial database more>> Intellectual Property Press, 1998.

(4) Liu Jiangbin: "The legal issues of digital information exchange: information and database of intellectual property rights protection>> Intellectual Property Press, 1999.

(5) Wu Baoguo, Sun Guoguang, etc.: <<Electronic Information Application Basics Series - database application based>>, Tsinghua University Press, December 1998, 1st edition, p. 14.

(6) Han-Dong Wu, Hu Kaizhong, etc.: <<move toward a knowledge economy era, Intellectual Property Law>> Law Press in October 2002, 1st edition, p. 278.

(7) Zheng Shengli, Cui Guobin: <<status of database protection legislation and basic theory,>>, set <<North Intellectual Property Review>> Volume 1.

(8] Yuan Beach: <<On the digital rights to balance the interests>> set <<Intellectual Property>> 1998 6.

(9) Song Hongsong: <<On the Anti-Unfair Competition Law in the status of intellectual property law system>> load <<Intellectual Property>> 2002 12.

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