데이터베이스의 저작권법상 보호와 문제점

The term “database” can be understood to include literary, artistic, musical or other collections of works or collections of other material such as texts, sound, images, numbers, facts, and data and it should cover collections of independent works, data or other materials which are systematically or methodically arranged and can be individually accessed. In Article 10(2) the TRIPs provides that complication of data or other material, whether in machine readable or other form, which by reason of the selection or arrangement of their contents constitute intellectual creations shall be protect as such. According to this agreement, EC Directive provides that database cab be protectable if 1)it contains information arranged in a specific way that has originality(compilations) or 2)it is created through a substantial investment(so called sui generis right). Especially second test require substantiality of investment in making a database, which can be evaluated by either quantitative or qualitative. But neverthless EC Directive does not provide a clear guideline for determining whether a database qualifies for the sui generis right. This inherent in the word “substantial” that makes it difficult for court to interpret the Directive in a consistent manner. It is ambiguous in determining how much or what kind of time, money, efforts, etc.,, spent in making database, constitute “substantial investment”. Probably if we are faced with the interpretation of word, our court also will confuse in determining what kind of database be eligible for protection. On the other hand, there is no federal legislation for database protection in USA. However congress started a serious discussion about that problem. But most scholar disagree on what type of protection is appropriate and permissible in the USA.