Committee of Experts on a Possible Protocol to the Berne Convention, Seventh Session
Committee of Experts on a Possible Instrument for the Protection of the Rights of Performers and Producers of Phonograms, Sixth Session
Geneva, May 22 to 24, 1996
Proposal of the United States of America 1 on SUI GENERIS Protection of Databases
Text of the proposal
1.1 The legal protection under this [Instrument] extends to databases embodied in any form.
1.2 Contracting Parties shall protect substantial investments in databases in accordance with the provisions of this [Instrument]. Contracting Parties shall protect all databases that represent a substantial investment in the collection, assembly, verification, organization, or presentation of the database contents, whether or not such database is made commercially available or otherwise made available to the public, regardless of the form or medium in which the database is embodied, and regardless of whether the database or any of its contents are intellectual creations or are protected under other domestic legislation.
1.4 The protection under this [Instrument] shall not extend to any computer programs, including without limitation any computer program used in the manufacture, operation or maintenance of a database. However, a database incorporated into a computer program shall be protected under this [Instrument].
2.1 A "database" is a collection, assembly or compilation of works, data, information or other materials arranged in a systematic or methodical way.
2.2 "Extraction" means the permanent or temporary transfer to the same or another type of medium, by any means now known or later developed, of all or a substantial part of the database contents.
2.3 The "maker of the database" is the natural or legal person or persons making a substantial investment in the collection, assembly, verification, organization or presentation of the contents of the database.
2.4 "Substantial investment" means any qualitatively or quantitatively significant investment of human, financial, technical or other resources in the making of a database.
2.5 "Substantial part" means any portion of the database that is of qualitative or quantitative significance when evaluated in relation to the entire database.
2.6 "Use" and "reuse" mean the making available, by any means now known or later developed, including by the distribution of copies, by renting, or by on line or other forms of transmission, of all or a substantial part of the contents of a database, including making available of all or a substantial part of the database to members of the public at a place and at a time chosen by each member of the public, whether or not for direct or indirect commercial advantage or financial gain.
Rights in Respect of Database Contents
3.1 The maker of a database eligible for protection under this [Instrument] shall have the right to do, authorize or prohibit acts of extraction, use or reuse of all or a substantial part of the contents of the databases.
3.2 The protection provided under this [Instrument] shall not preclude any person from independently collecting, assembling or compiling works, data or materials from any source other than a protected database.
4.1 The rights provided under this [Instrument] shall be owned by the maker of the database or, where there is more than one maker, jointly by the makers.
4.2 The rights provided under this [Instrument] shall be freely transferable.
Exceptions to Rights
5.1 Subject to the limitations in paragraph 2 of this Article, a lawful user of a database made commercially available or generally made available to the public may extract, use or reuse insubstantial parts of its contents for any purpose whatsoever.
5.2 The repeated or systematic extraction, use or reuse of insubstantial parts of the contents of a database in a manner that cumulatively conflicts with the normal exploitation of the database or adversely affects the actual or potential market for the database shall not be permitted.
5.3 Contracting parties may, in their domestic legislation, provide for exceptions to or limitations on the rights provided in this [Instrument] so long as such limitations or exceptions do not unreasonably conflict with a normal exploitation of the database and do not unreasonably prejudice the legitimate interests of the rightholder.
5.4 It shall be a matter for legislation in the Contracting Parties to determine the protection to be granted to databases made by a governmental entity or its agents or employees.
Term of Protection
6.1 The rights provided under this [Instrument] shall attach when the database meets the requirements of Article 1.3 and shall endure for at least 25 years.
6.2 For databases that have been made commercially available or generally made available to the public, the rights provided under this [Instrument] shall endure for at least 25 years from the first of January following whichever of such acts has occurred earlier.
6.3 Any significant change, evaluated qualitatively or quantitatively, to the database, including any significant change resulting from the accumulation of successive additions, deletions, verifications or re-verifications, alterations, modifications in organization or presentation, or other modifications, shall qualify the resulting database for its own term of protection.
Relation to Other Laws
7.1 The protection under this [Instrument] shall be without prejudice to provisions concerning copyright, rights related to copyright or any other rights or obligations in the database or its contents, including laws in respect of patent, trademark, design rights, antitrust or competition, trade secrets, data protection and privacy, access to public documents, and the law of contract.
7.2 No Contracting Party shall impair the ability to vary by contract the rights and exceptions to rights set forth herein.
Prohibition of Protection-Defeating Devices
Contracting Parties shall make it unlawful to import, manufacture or distribute any device, product, or component incorporated into a device or product, or offer or perform any service, the primary purpose or effect of which is to avoid, bypass, remove, deactivate, or otherwise circumvent, without authority, any process, treatment, mechanism or system which prevents or inhibits the unauthorized exercise of any of the rights under this [Instrument].
Application to Existing Databases
9.1 Databases eligible for protection under this [Instrument] that are in existence at the time this [Instrument] comes into force in respect of a Contracting Party shall be protected. The duration of such protection shall be determined under Article 6.
9.2 The rights under this [Instrument] shall be without prejudice to any acts of exploitation performed prior to its effective date. It shall be a matter for domestic legislation to provide for protection of any rights of third parties acquired before the effective date of this [Instrument].
10.1 Contracting Parties shall provide for the implementation of this [Instrument] in domestic legislation by its effective date in their territories.
10.2 The means by which this [Instrument] is implemented shall be a matter for national legislation, and may include protection under the laws related to intellectual property, unfair competition, misappropriation or other laws.
11.1 Databases whose makers are at the time of the making of the database either nationals of or habitual residents of a Contracting Party shall be protected under this [Instrument].
11.2 Rightholders shall enjoy, in respect of databases that qualify for protection under this [Instrument], in Contracting Parties other than the country of the nationality or the habitual residence of the maker, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this [Instrument].
11.3 Protection in the country of the nationality or habitual residence of the maker shall be governed by domestic law.
11.4 The enjoyment and the exercise of the rights hereunder shall not be subject to any formality; such enjoyment and exercise shall be independent of the existence of protection in the country of the database maker's nationality or habitual residence. Apart from the provision of this [Instrument], the extent of protection, as well as the means and extent of redress, shall be governed exclusively by the laws of the Contracting Party where protection is claimed.
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