Page 226 - 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

109
information, which is ‘an important policy objective of the EU intervention’. Alternatively,
a tort law regime only works as a tool to provide ex-post remedies through litigation and has
less effect on incentivising the production of information at the outset.
The property right approach is a stronger protection mechanism, but it also involves
more cost to delineate and manage the information. Due to the lack of physical boundaries,
the cost of delineating the boundary of information rights is higher for intellectual property
than tangible property. A more considerable cost associated with the property right approach
is the social cost of excluding multiple uses, whereas the tort law approach inherently
110
tolerates multiple uses unless they constitute a tort. According to Sherman and Bently’s
historical study, intellectual property rights were produced by the anti-unfair competition
111
law. With the growth in value of particular kinds of information, and advances in the
modern registration system, drawing boundaries around information and treating information
112
as a proprietary object, the property right regime began to form.
The performance of the Database Directive indicates that it is still premature to formulate
a proprietary framework for databases. The European Commission’s evaluation report
shows that the sui generis right has mostly been invoked for ex-post use such as preventing
others’ use, rather than ex-ante use such as facilitating licensing or assignment within a
113
contractual framework. This suggests that although policymakers want to encourage ex-
ante utilisation of databases by, for example, licensing and assignment, the high transaction
costs have been an impediment, and disagreements over what qualifies as an exception to sui
generis protection have hindered parties from concluding contracts. The report’s observation,
that the Database Directive has not provided any proven incentive to create databases,
further questions the justification for invoking a robust and expansive proprietary regime to
protect databases. In the past twenty years there has been considerable growth in database
production in the US despite its lack of database protection. In contrast, the introduction
of sui generis protection in the EU appears to have led to a consequence that is far from its
initial intention. The failure of sui generis protection to achieve its goal of facilitating ex-
114
ante transactions and the commercialisation of databases, and stimulating the production of
databases, along with the high costs associated with the property right regime, has led to the
conclusion that a tort law approach better accommodates database protection.
115
Due to the territorially limited application of sui generis protection in the EU and the

109 European Commission, Evaluation of Directive 96/9/EC on the Legal Protection of Databases (n 75) 12.
110 Smith (n 107) 1749.
111 Brad Sherman and Lionel Bently, The Making of Modern Intellectual Property Law : The British Experience, 1760-1911
(Cambridge University Press 1999) 4; Smith (n 107) 1754.
112 Sherman and Bently (n 111) 142.
113 European Commission, Evaluation of Directive 96/9/EC on the Legal Protection of Databases (n 75) 12.
114 Ibid 18.
115 Database Directive, art 11.1 “The right provided for in Article 7 shall apply to database whose makers or rightholders are
nationals of a Member State or who have their habitual residence in the territory of the Community.”

• 212 •