Protection of and Access to Data under European Law
This chapter focuses on (1) keeping data exchange infrastructures freely accessible and (2) accommodating different existing or proposed access regimes with EU copyright law, in particular with sui generis protection of databases. Accordingly, the chapter mainly focuses on access issues rather than protection. Academic contributions with regard to the latter and also on necessary limitations to protection exist in abundance. By contrast, there is comparatively little literature on the different, recently proposed sector-specific access regimes and the consistent accommodation of such future access regimes with existing IP-protection. This even concerns sectors where overlap and possible contradictions are already imminent, such as the relation of EU sui generis protection for databases with the co-existing EU regime on access to public sector information. The chapter will focus on three aspects of the recent access discussion. First, free accessibility and availability of the infrastructural framework for data access, exchange, and trade in data will be discussed. Secondly, existing copyright protection of computer programs and compilations will be analysed to further identify specific access problems and hold-up potential. Thirdly, the chapter deals with EU sui generis protection for databases which, in this author’s view, is in need of imminent reform. This section also focuses on different areas and case groups, where access rights already exist or are discussed, and will categorize these access rights from an IP perspective as a sound basis for making specific reform proposals on the contextual accommodation of such future access rights with sui generis protection for databases.