Page 225 - A Study on the Role of UGC Platforms in Copyright Law：An Intermediary-oriented Approach

A Study on the Role of UGC Platforms in Copyright Law: Chapter 7 Platform Users’ Entitlement to UGCs: Human Use and Web Scraping
An Intermediary-oriented Approach

3) International treaties
At the 1996 WIPO Diplomatic Conference, the EU and the US patent and trademark
offices tried to construct a database treaty modelled on the EU Database Directive. However,
because a variety of complex issues relating to the Copyright Treaty and the Performances
and Phonograms Treaty remained unsolved, discussion of the database treaty was postponed.
Due to the scepticism of other member states regarding the need for sui generis database
protection, there has been no international agreement on a database right. Nor is it likely that
any consensus on a database right will be reached in the foreseeable future.
4) A property right or a tort-based regime
The intricate process of introducing a sui generis database right shows how difficult
it has been to strike a balance between encouraging investment in database creation and
preserving the public interest in fair competition in the information market. It has also posed
a more fundamental challenge to the underpinnings of proprietary database protection. Until
now, no jurisdiction other than the EU has followed the sui generis right approach. It is
noteworthy that except for H.R. 3531, which was criticised for overprotecting information,
US proposals have adopted a tort-based regime rather a property right approach. The passive
role of the sui generis right protection under the EU Database Directive also casts doubt on
the current protection of proprietary databases.
There have generally been two approaches to protecting information: (i) the property
right regime, which takes the form of copyright, patent, trademark and sui generis rights,
and (ii) the tort law regime, such as anti-unfair competition. Property right rules focus on
drawing boundaries around the property right, which acts like the fringes of a commodity.
Any encroachment of the boundary constitutes infringement, so this approach was also
coined the ‘exclusion strategy’ by Henry Smith. Tort law rules, or ‘governance strategy’
107
under Henry Smith’s formulation, pay more attention to conduct. A user violates tort law
not because the information is covered by a property right, but because the use itself is
independently wrongful under the tort law, such as committing an act of unfair competition
108
or trespass to chattels.
The property right regime provides more robust protection than the tort law regime. For
example, any putative user who wishes to use proprietary information must gain permission
from the right holder. In contrast, a user of non-proprietary information can use the right
directly and pay judicially determined damages if the use is proven to be a tort. The property
right regime facilitates the management and commercialisation of information through
contractual arrangements. It has the effect of encouraging investment in the production of

107 Henry E Smith, ‘Intellectual Property as Property: Delineating Entitlements in Information’ (2007) 116 Yale Law Journal
1742, 1745.
108 David D. Friedman, William M. Landes and Richard A. Posner, ‘Some Economics of Trade Secret Law’ (1991) 5 Journal of
Economic Perspective 61, 66.

• 211 •