Gerald M. DiGiusto
APSA 2005
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Submitted 18 August 2005
In this paper, I discuss the international regulation of databases. Compilations of data
have become the subject of a contentious intellectual property debate between the EU and U.S.
over the past decade, particularly with the emergence of on-line technologies for the collection,
dissemination, organization, and use of data. Although both sides initially seemed to hold
convergent views on the international regulation of database rights, to the point of jointly
proposing an international treaty in 1996, their approaches have since diverged dramatically,
generating an uncertain legal environment for database producers, users, and regulators. Given
the transnational nature of the market for many types of databases and the extensive international
regime for copyright and other intellectual property rights, database regulation should be an easy
case for institutionalist theories. There are many ex ante reasons to believe that the EU and U.S.
would cooperate to build a regime for databases, yet no regime has thus far been established.
Database protection therefore constitutes an international non-regime.
After defining databases and describing the market for them, I review the status quo for
intellectual property regulation on this issue in Europe, the U.S., and internationally. In essence,
the EU’s 1996 database directive granted database producers a broad set of ownership rights
covering a wide range of databases. The U.S., however, has not implemented any database
protection laws, despite repeated attempts to do so since 1996. In the final section of the chapter,
I offer competing explanations of these divergent outcomes based on my theory of private sector
preferences and the statist-realist alternative.
Statist-realist theories cannot adequately explain the disparate EU and U.S. approaches
and, particularly, the inconsistency in the U.S. government position toward international
regulation of database protection. Therefore, to understand how initial convergence
disintegrated into diametrically opposed regulatory models and a resulting non-regime at the
international level, closer analysis of the underlying preferences of the relevant stakeholders is
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Convention