La protección jurídica de las bases de datos en el ordenamiento europeo

Resumen

The aim of this work is to give an answer to the questions that arise when looking at an item which is essential for the running of our social systems in the Information Society context: databases. Many of these questions its origin in the most recent developments in the digital environment. As a preliminary approach, what is a database? Should we protect not only the structure but also the contents of the database? How can we regulate a databases protection without extending that protection to the individual elements in the database? Where does the database end and where does the computer program that enables its running start? Is there an actual borderline between these two concepts? How was it possible to reach harmonization over the copyright protection of databases structures, considering the differences among EU Member States, both the countries of the "droit d'auteur tradition" and the countries of the "copyright tradition"? Has this aim been actually fulfilled? By which means was this achieved? Is it necessary to have a sui generis right to protect databases, taking into account the running of the information industry in general and the databases industry in particular,? Or, a contrario, was there sufficient incentive provided, both in the national and international systems in order to invest in database production, so that further protection was not necessary? Would databases makers allow access to their products if this form of protection for recovering their investments -that is, the sui generis right- did not exist? In essence, is there any evidence that stronger protection of databases stimulates investment for producing them? Considering the features of databases that are produced nowadays, how many of these do not fulfill the conditions for being protected by copyright? Why? As a consequence, how many databases could be protected only by a sui generis right, provided that the investment requirement is fulfilled? If regulating a sui generis right, what would be its nature and its extent? Would it be similar to the so-called related rights in the intellectual property law? Do intellectual property rights arise when we are not protecting originality but mere investment which is mostly made by legal entities, and not by individuals? What is the relation between sui generis right and other forms of protection such as contracts and competition law? What would be the scope and extent of this sui generis right? When would right holders control the use not of the whole but just part of the contents of the database? Regarding the freedom of information as set out in national Constitutions of many countries that consider themselves being based on a democracy system, does the sui generis right increase the volume of information available to the public? Should we exclude public databases from the sui generis right? And finally, what is the protection of technical measures which are introduced in databases? What about the actual use of these made by databases makers?