Meeting of the World Intellectual Property Organisation (WIPO) Standing committee on Copyright and Related Rights, Geneva, 2-10 November 1998

IFLA/FIAB intervention on sui generis protection of non-original databases

Thank you, Mr. Chairman.

As this is the first time we have spoken, we would like to point out that IFLA is the international body that represents library institutions and association from all corners of the globe.

As such, we represent many different types of libraries including national and public libraries, tertiary and school libraries, scientific, research and hospital libraries as well as government libraries, libraries of parliaments, non-governmental organisations and inter-governmental organisations.

IFLA of course represents the libraries themselves as well as the people who use them, which is all of us.

The remarks that IFLA would like to make are based on the following premises:

Firstly that there is clearly much work to be done before the need for a new international treaty on protection of non-original databases can be established; and

Secondly, considering the potentially severe effects on science, education, research, innovation, and access to information generally that conferral of ownership in data may effect in conjunction with the range of protection mechanisms already available to database producers (including copyright and in particular the powerful combination of contracts with technological protection and enforcement measures), that we have not been offered substantiated, unequivocal evidence of a market failure requiring the adoption of a new WIPO database treaty.

In light of these general statements, we make the following brief comments on the need for, and possible nature of, a new database treaty.

It is IFLA's view that as the need for new property rights in data collections is ambiguous at best, the onus is on those wishing to create these new rights to establish the existence of a global need for them. We would suggest that if evidence of such a global, as opposed to a regional or domestic need, is not, or cannot be proffered, then logically, there can be no need for a new WIPO database treaty. In our view, considering what is at stake, this onus should be a heavy one.

The second point that IFLA would like to make concerns the language of any proposed treaty. Should a limited market failure in respect of non-original databases be identified resulting from certain gaps in protection, then the language of any treaty adopted to fill those gaps would have to be very carefully crafted to ensure that over-protection does not result.

In this, terms such as 'substantial part', 'insubstantial part', and 'substantial investment' would have to be very carefully crafted to ensure that a higher standard of protection than was intended not be able to be implemented domestically.

Finally, IFLA would comment that if a database treaty were introduced, it should not require contracting parties to introduce a sui generis protection scheme where existing domestic copyright legislation offers equivalent protection to databases in line with standards set by any new international instrument.

Thank you.

5 November 1998

Intervention made by the International Federation of Library Associations and Institutions (IFLA/FIAB) represented by Ms. Annabelle Herd (E-mail: aherd@nla.gov.au), Copyright Advisor, Australian Council of Libraries and Information Services (ACLIS).