A New Outlook on the Economic Dimension of the Database Protection Debate

This article addresses the contention that if the law does not protect database producers, these producers will not have an incentive to continue to create these works and, in turn, a market failure in the database industry will occur.
The article begins with an overview of the main economic dilemma of incentives to create versus dissemination and use of raw data. Next, it examines the
conflicting empirical evidence to date, some of which suggests that there is a
problem requiring remedy and some of which suggests the opposite, arguing
that such evidence is inconclusive in resolving the dilemma. The article then
examines whether additional intellectual property protection is needed, even if
market failure exists. It advances the argument that there are many existing, yet
overlooked measures that make such protection redundant. First, it points to the de facto “protectability” of databases. Second, it discusses available private
market and technological mechanisms. Finally, it examines and provides an
updated overview of and some new insights into various legal mechanisms that
provide additional protection to databases. The article concludes that the protection of databases is best done by advancements in technology, and any legally-created protection will only protect the financial interests of certain members of the industry for a limited time.