© Michal Shur-Ofry, 2009 Dr. Michal Shur–Ofry Hebrew University of Jerusalem WIPO SME Seminar, May 2009 The Protection of Databases and the Overlooked Aspect of Selection & Arrangement

The Databases Debate Copyright and Databases: The Databases Debate –Does (and should) copyright protection extend to factual contents of databases and compilations? But what about Selection and Arrangement? The argument: the databases debate requires a change of focus: from contents to selection and arrangement. Broad copyright protection of selection and arrangement can be a source of substantial difficulties and deserves a closer examination. a Database – a collection of independent works, data or other materials, arranged in a systematic or methodical way, and individually accessible by electronic or other means [ EU Databases Directive 1996] © Michal Shur-Ofry, 2009

(c) Michal Shur-Ofry, 2009 Protection of Contents – the diverging attitudes: English Law: protection of factual compilations on the basis of skill and labour in assembling the data and preparing the database - e.g. – BBC v. Time Out (broadcasting schedules), Waterlow v. Reed (classified directories), Littlewood (sports fixture lists ); US Law: Feist Publications (1991) – originality – a modest amount of creativity in selection and arrangement of the material (as opposed to sweat of the brow). Factual contents of compilations cannot enjoy copyright protection regardless of the investment expended in their assembling; Australian Law: Telstra (2002) EU Databases Directive (1996): SUI GENERIS right – protection of databases contents based on substantial investment, qualitative or quantitative, in either the obtaining, verification or presentation of the contents. Background: Copyrights Position Towards Databases Protection

Copyrights Position Towards Databases Protection (continued) Protection of Selection and Arrangement – a broad consensus: US Law: A factual compilation eligible for protection if it features a modestly creative (original) selection and arrangement. EU Databases Directive (1996): Art. 3: databases which, by reason of the selection or arrangement of their contents, constitute authors own intellectual creation shall be protected as such by copyright… International Conventions and Agreements: Berne Convention – Art. 2(5): Collections of literary or artistic works ….which, by reason of the selection and arrangement of their contents, constitute intellectual creations shall be protected as such… WIPO Copyright Treaty – Art. 5 - "Compilations of data or other material, in any form, which by reason of the selection or arrangement of their contents constitute intellectual creations, are protected as such. This protection does not extend to the data or the material itself and is without prejudice to any copyright subsisting in the data or material contained in the compilation TRIPS Agreement – Art 10(2) © Michal Shur-Ofry, 2009

Copyrights Obsession with Facts ?(Jane Ginsburg) the grant of such monopoly protection to original elements of a compilation…imposes little or no costs or disadvantage to society. The facts set forth in the compilation are not protected and may be freely copied; the protection extends only to those aspects of the compilation that embody the original creation of the compiler". [CCC Information Services. v. Maclean Hunter Market Reports, 2 nd. Cir., 1994] Protection of Selection and Arrangement – (cntd) © Michal Shur-Ofry, 2009

Cognitive Perspective – the cognitive role of categories, structures and patterns Economic Perspective – susceptibility to network effects IMS Health GMBH & Co. v. NDS Health GMBH & Co. (ECJ, ) Melway Publishing Pty Ltd. v. Robert Hicks Pty Ltd. (Australia, 2001) Inclination towards standardization IMS, Legal Publishers, Ticketmaster, Bikram Yoga (Open Source Yoga Unity v. Bikram Choudhury, US 2005) A Closer Look at Selections and Arrangements © Michal Shur-Ofry, 2009

Use of a popular selection and arrangement to prevent users lock-in? IMS Health GMBH & Co. v. NDS Health GMBH & Co. (ECJ, ) Legal publishers battle: West Publishing Co. v. Mead Data Central (8 th. Cir. 1986); Oasis Publishing v. West Publishing (D.C. Minn., 1996); Matthew Bender & Co. v. West Publishing Co.,(2 nd Cir. 1998). Dialogic function: selections, arrangements and the world of thinkable thoughts (Daniel Dabney) Copyrights Role © Michal Shur-Ofry, 2009

Implications and Directions towards a Possible Solution Explanatory and normative implications Broader context: copyrights positions towards other patterns and formats (SSO, user interfaces, television formats) Potential directions for a solution: Copyright Misuse? Rethinking the current balance between protection of contents and protection of selection and arrangement? In Sum: The overlooked aspect of Selection and Arrangement deserves a closer look! © Michal Shur-Ofry, 2009