Gerald M. DiGiusto
APSA 2005
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Submitted 18 August 2005
imperative. The key schism occurs between database producers and their customers, both of
whom face very different incentive structures and thus express vastly different preferences. The
former reasonably seeks the strongest possible ownership rights to command higher prices and to
prevent appropriation and exploitation of their intellectual product. The latter group, however,
while conceding the need for an appropriate level of intellectual property protection to encourage
innovation, strives to maintain a minimalist regulatory approach that reduces their costs and
makes data more readily available.
Domestically, producers and consumers have had greatly varying success in prevailing
upon the EU and U.S. governments to adopt their favored policies, with producers gaining the
upper hand in Europe while a coalition of database user groups have thus far impeded legislation
in the U.S. that would impose an expansive database protection right similar to the EU database
directive. Despite EU efforts to impose its so-called sui generis
model through a reciprocity
clause in its database law, the U.S. legislature has proven reluctant to act against the wishes of a
broad-based database user coalition comprised of financial service companies,
telecommunications firms, and the research library community. Consequently, even though
intellectual property is a highly developed transnational policy area, boasting a long history of
international cooperation and a formal institutional status within the World Trade Organization,
the structure of private preferences and their influence on domestic politics has blocked further
cooperation. Over the past ten years the international regulation of databases has evolved from a
joint EU-U.S. effort to conclude a multilateral treaty to divergent domestic approaches,
producing a persistent non-regime. In the pages that follow, I seek to explain this puzzling series
of events.
1
Meaning, literally, “of its own kind.”
3
Convention