Database Protection in the European Union

Fabio Marino

Table of Contents

The Structure of the European Union
Direct Effect of EU Directives
The Proposed Database Directive
Background and History of the Directive
Substantive Provisions
Common Provisions
Copyright Law Harmonization Provisions
Sui Generis Provisions
The U.S. Approach after Feist
Comparing the U.S. and the EU Approaches
The Impact of the Database Directive on U.S. Databases
Constitutional Implications of Feist v. Rural Telephone

Throughout its history the law of intellectual property, and copyright in particular, has struggled to strike a balance between the competing interests of protecting authors' rights to promote the creation of new works on the one hand and encouraging the public dissemination and use of works of authorship on the other. In this context, compilations of data have always presented a difficult problem: while such works do not exhibit the modicum of creativity usually required for copyrightability, a great number of them have proven to be extremely useful to society. The typical example would be that of a telephone directory containing a simple alphabetical listing of subscribers in a particular geographic area: while virtually no creative effort is required on the part of the author, it would be hard to deny the substantial utility of telephone directories in modern day life and, as a result, the desirability of offering some form of protection for these works.
Even though copyright law has traditionally required a lower standard of creativity than patent law, courts have always been reluctant to grant protection to factual compilations on the grounds that facts fall inherently within the public domain. As a consequence, protection of factual compilations is routinely accorded only to the extent to which the selection and arrangement of the compilation constitutes an original creation.
As in other areas of intellectual property where traditional provisions of copyright, patent or trademark law have produced unsatisfactory results, the debate over the desirability of a sui generis solution has been intense in the area of factual compilations. In the United States, for example, until 1991 n1 some courts used the so-called "sweat of the brow" doctrine to provide relief to the authors of labor intensive, yet not sufficiently original, factual compilations. In stark contrast, the European Union (EU) has recently moved in the direction of sui generis protection of electronic databases by adopting the Proposed Council Directive on the Legal Protection of Databases. n2
The Database Directive presents a solution much more limited in scope with respect to the "sweat of the brow" doctrine insofar as it deals only with electronic databases and provides more limited rights than would otherwise be available under copyright law. Nonetheless it represents a substantial step toward the recognition of rights in factual compilations.
This paper will analyze how the provisions of the Database Directive fit within the context of copyright protection within the EU member nations. The paper will then compare this new approach with the traditional approach taken by the United States Supreme Court in Feist. n3 Finally, this paper will discuss the implications of the Database Directive's reciprocal treatment provisions on the US policy towards protection of electronic databases, especially in view of the growing movement towards harmonization of intellectual property laws within the European Union.

The Structure of the European Union n4
The European Union n5 consists of four main bodies: the European Commission, a seventeen member executive body primarily in charge of drafting legislation; the European Council, a legislative body composed by the Heads of State and the foreign ministers of the member states, primarily in charge of reviewing and adopting p roposed legislation in view of the domestic laws of the member states; the European Parliament, an advisory supervisory body comprising directly elected representatives of the member states, in charge of reviewing and advising the Council on proposed legislation; n6 and the European Court of Justice, n7 a judicial body entrusted with resolving disputes resulting form the interpretation and application of European legislation in national courts throughout the Union.
European legislation is generally drafted by the European Commission and submitted to the European Council which, in turn, reviews it in view of the relevant provisions of the laws of the member states. During its review, the European Council consults with the European Parliament and may require the Commission to amend its proposal to conform with its views. Ultimately, the European Council may adopt legislation in the form of Regulations, Directives n8 or Decisions. The European Council may also give its non-binding views in the form of Recommendations or Opinions. Regulations, Directives, Decisions, Reccomandations and Opinions are all forms of Secondary European legislation, in the sense that they derive their authority from Primary European legislation, i.e. the Treaty of Rome as modified by the Single European Act and the Treaty of Maastricht.
Directives require member states to enact national laws in accordance with their provisions, within specified time limits. In theory, therefore, Directives do not create direct rights and obligations for the citizens of the European Union. However, as we shall see below, this principle has been substantially eroded by a number of decisions of the European Court of Justice.

Direct Effect of EU Directives
Under established principles of International Law, both bilateral and multilateral treaties can be classified as either self-executing or non self-executing treaties. A self-executing treaty is a treaty that, by its terms and provisions, creates direct rights and obligations for individual citizens or subjects of the High Contracting Parties. Most treaties, however, explicitly state that the signatory nations will have to enact legislation to give effect to the relevant treaty provisions: these treaties are, thus, not self-executing.
European Directives explicitly require member states to enact national legislation in accordance with their provisions. Directives are, therefore, non self-executing and have no direct effect on the rights and obligations of the citizens of the European Union. By contrast, the European Court of Justice has recognized that Union Law (such as the provisions of the Treaty of Maastricht) can have direct effect n9 and do, in fact, take precedence over national laws of member states in case of conflict. n10 Generally, in order for European Laws to have direct effect, the obligations imposed on the member state must be stated in clear and unconditio nal terms and no discretion must be left to the member state in implementing the provisions.
Although the European Court of Justice has held that these principles may extend to Secondary European legislation as well (thus including Directives), in most cases the terms of the Directive itself will preclude direct effect. n11 Furthermore, even in cases where such direct effect is found, it cannot be applied horizontally, i.e. the provisions do not apply as between individuals, but only between individuals and member nations. Thus, an individual seeking to avail him/herself of the rights created by the terms of a Directive cannot bring an action against another individual under the Directive itself, but only under domestic laws enacted pursuant to the Directive. However, in 1984 the Court introduced the principle of "interpretation in conformity with community law," n12 according to which national legislation and, in particular, legislation enacting Directives' provisions is to be interpreted in accordance with the terms of Secondary Community Laws. n13 As a result, European Directives have been deemed to have a "pseudo-horizontal effect." n14 Thus, a national court deciding an action under the purview of a Directive would be forced to adopt the terms of the Directive as binding interpretation of the relevant domestic laws, regardless of whether textual and precedential analysis of these laws would support such position. This case would most likely arise in situations where a member state has chosen not to modify an established principle of law pursuant to the terms of a Directive, relying instead on a broad interpretation of the domestic statute. In such cases, domestic courts would have to apply the terms of the Directive in construing the domestic statute, even if that meant reaching a counter-intuitive result.
Recently, however, the European Court of Justice has recognized that member states may be liable for failure to implement a directive. n15 In Francovich the ECJ refused to allow the plaintiff, who would have had a valid claim under the terms of a Directive, to recover form the defendant since the member state had failed to enact domestic legislation in accordance with the Directive, but allowed him to recover damages from the member state for its failure to implement the Directive. This principle, known as "Francovich liability," appears to be a driving force in inducing member states to enact Directives in a timely fashion.

The Proposed Database Directive
Background and History of the Directive
On April 15th, 1992, the European Commission issued a formal proposal for a Directive on the legal protection of databases, n16 which was later amended by the Commission on October 4th, 1993. n17 The amended proposal is now pending before the European Parliament.
The Database Directive seeks to create a two-tiered approach to the protection of electronic databases: databases that by virtue of the originality of their selection and arrangement qualify for copyright protection under national laws will enjoy the same rights as other copyrighted works, n18 in addition, databases which do not meet such requirements will, nonetheless, be protected against unfair extraction n19 under the terms of the Directive. Thus, the Directive serves the dual purpose of harmonizing domestic laws regarding the protection of electronic databases which qualify for copyright protection and of creating sui generis rights to protect electronic databases that fail to meet this standard.

Substantive Provisions
Because of its two-tiered approach, the Directive contains provisions which are common to both copyrightable and non-copyrightable databases, as well as provisions which apply only to one or the other.

Common Provisions
Article 1 of the Database Directive defines a database as "a collection of data, works or other materials arranged, stored and accessed by electronic means and the materials necessary for the operation of the database." n20 Thus, the Directive's provisions apply only to databases stored in electronic form and not, for instance, to the same databases stored in hard-copy. n21 This restriction appears to be in line with the Union policy towards harmonization of laws dealing with high technology areas as a first priority. In addition, the protection extends to the database indexing and presentation format, n22 but not to the computer programs used to create and store the database. n23 Such programs, however, fall under the purview of the Software Directive. n24 Similarly, the rights conferred under the Directive do not extend to the underlying works contained in the database. n25
For the purposes of the Directive, the person, persons or legal entities who created the database are deemed to be the authors of the database. n26 In the case of joint authorship, all joint authors are deemed to be joint owners of the rights in the database. n27 Finally, if the database has been created by an employee in the course of his/her employment, the employer is deemed to be the owner of the database. n28 This provision, however, can be modified by contract. n29
Incorporation of any copyrighted works into a database is still subject to the authorization of the copyright owner. n30 However, no such authorization is required for the use of bibliographical references, n31 abstracts n32 or brief quotations n33 prepared by the authors of the database, provided that proper credit is given to the author and the source of the materials. n34 The latter provision reflects the adoption by the European Commission of a policy of allowing de minimis taking of copyrighted works for the purpose of effectively documenting the contents of the database.

Copyright Law Harmonization Provisions
The Directive provides that databases be protected by copyright under national legislation to the extent that their selection and arrangement are sufficiently original to constitute the author's own intellectual creation. n35 Thus, in case a member nation did not provide such protection under its current laws it would be forced to amend them to comply with the term sof the Directive.
The exclusive rights granted to the owner of a database within the meaning of the Directive are set forth in Article 6. These rights include the right to reproduce the information contained in the database in whole or in part, n36 the rights to translate, n37 adapt n38 or arrange n39 the database, the right to reproduce any data extracted from the database, n40 the right of distribution n41 and the rights of display n42 and public performance. n43 These rights, however, only extend to the selection and arrangement of the database and the database in its electronic format. n44 Therefore, if a certain database, for instance a telephone directory, is stored in both electronic and non-electronic formats, only its electronic format is protected. In addition, data originally stored in electronic format is still protected after extraction, thus a printout of a database query of all telephone subscribers with a particular last name would still be protected under the terms of the Directive, while the same information obtained by browsing through a printed copy of the directory would not.
In spite of the exclusive rights granted to the owner of the database, a lawful user may perform any acts necessary for the use of the database. n45 These acts may be specified by contract; n46 otherwise any acts necessary to gain access to the information contained in the database are deemed allowed. n47 Quite clearly these exceptions do not extend to any copyrighted information stored in the database, n48 except for brief quotations n49 and illustrations for teaching purposes. n50
The term of protection for databases that meet the originality standard required for copyright protection is the same as that provided for literary works. n51 A substantial change in the selection and arrangement of the contents of a database is deemed to create a new database, which enjoys the same rights as the original database, including a new term of protection starting from the moment of creation of the new database. n52

Sui Generis Provisions
In addition, Article 10 of the Directive grants the owners of databases which do not meet the originality standards required for copyrightability protection the right to prevent the unathorized extraction of the contents of the database for commercial purposes. n53 This right applies even if the database is protected by copyright, n54 but it does not extend to any copyrighted works contained in the database. n55 It is unclear under which circumstances the owner of a database which qualifies for copyright protection would elect to avail him/herself of the this narrower provision, except, perhaps, to avoid having to prove the copyrightability issue in a clear case of infringement.
The Directive, however, sets forth several exceptions to the right to prevent unauthorized extraction. These include a requirement that extraction or re-utilization of the contents of the databases be licensed under fair and non-discriminatory terms in case the data contained in the database cannot be otherwise obtained n56 or is collected by a public agency n57 or by a private entity under exclusive concession by a public agency. n58 In addition, extraction of insubstantial parts of the database is allowed for commercial purposes if proper credit is given n59 and for personal use even without credit. n60
The right to prevent unauthorized extraction runs for a term of 15 years starting on the year following the date when the database is first made available to the public. n61 In addition, any substantial changes to the database are deemed to create a new database which enjoys a new term of protection. n62
The protection granted by the Directive extends to all databases created by citizens of the Union n63 or by legal entities constituted under the laws of a member state, provided the entity has substantial economic ties to the member state. n64 These rights may apply retroactively to databases created prior to the date of publication of the Directive, provided they met the requirements of the Directive as of that date. n65 The European Council may extend the right to prohibit unathorized extraction to databases produced in third countries on proposal by the European Commission. n66 Such extension, however, appears to be conditioned on the granting of reciprocal rights to databases produc ed within the Union. n67
As we shall see below, this last provision may have significant implications for U.S. databases in light of U.S. Copyright laws.

The U.S. Approach after Feist
Under U.S. law, the eligibility for copyright protection of electronic databases depends on the interaction of two contrasting but well established principles: the non-copyrightability of facts and the copyrightbility of factual compilations. n68
The Supreme Court of the United States dealt squarely with the issue of the copyrightability of factual compilations in Feist Publications, Inc. v. Rural Telephone Service. n69 In Feist the Court had to decide whether the publisher of a telephone directory could preclude a competitor from incorporating the listings contained in the directory into its own regional telephone directory. n70 The Court recognized the contrasting principles of the uncopyrightability of facts and the copyrightability of factual compilations. n71 Justice O'Connor's analysis, however, brought to bear the principle that copyrightbility is ultimately dependent on the constitutional and statutory requirement of o riginality which, in the context of copyright, equates to the work being the intellectual creation of the author and exhibiting a modicum of creativity. n72 Under this rationale, it is clear that facts cannot be copyrighted since they are not the fruit of the intellectual creation of the author. n73 Compilations, however, can satisfy the originality requirement by virtue of the creative choices made by the author in the selection and arrangement of the facts. n74 Because of the originality requirement, however, the protection of factual compilations is limited to the copyrightable elements, i.e. the selection and arrangement, and it is therefore "thin". n75
On this basis, the Supreme Court rejected the so-called "sweat of the brow" doctrine, which appellate courts had used to accord copyright protection to factual compilations in recognition of the substantial efforts expended in creating them. n76 The Court found that Rural's directory, consisting of a simple aphabetical listing of telephone subscribers, did not exhibit sufficient creativity in its selection and arrangement to qualify even for "thin" copyright protection. n77
Applying the Feist rationale in the context of electronic databases raises significant issues which fall into at least three categories: (1) whether the selection and arrangement of the data stored in the database is sufficiently original to satisfy the copyrightability standard; (2) whether the selection and arrangement of the data in the electronic database is sufficiently original to satisfy the copyrightability standard and (3) whether the results of a database query exhibit sufficient creativity in their selection and arrangement to qualify for copyright protection.
The first two issues present considerable conceptual difficulties: in the first place, it may not be clear in a particular context which part of the selection and arrangement of the information lies in the organization of the underlying data and which part lies in the format in which it is incorporated in the database. A typical example would be the situation in Mead Data Central, Inc., v. West Publishing, Corp.. n78 Mead involved the issue of whether the "star-paging" feature of the LEXIS system infringed West's copyright in its case reporters. n79 The court held that because the feature incorporated the page numbers of West's printed reporters, Mead had, in fact, taken copyrightable expression in the form of West's selection and arrangement of the reported opinions. n80 The situation in Mead would seem to fall squarely within the first of our categories since the selection and arrangement found copyrightable by the court lied in the format of the reporters and not in the structure of an electronic database. n81
Let's suppose, however, that the issue before the court had been the alleged infringement of the copyright in WESTLAW® databases rather than in West's reporters. Clearly, the selection and arrangement of the WESTLAW® databases comprise at least two components: the selection and arrangement of the publications whose text is incorporated in individual databases n82 and the selection and arrangement of the actual databases available on WESTLAW®. This case would fall under both the first and the second categories since, in addition to the selection and arrangement of the reporters embodied in the star paging feature, the selection and arrangement of the databases within WESTLAW® would also qualify for copyright protection.
In addition, if WESTLAW® databases did not incorporate star paging (and thus would not be protected by virtue of the selection and arrangement of West's reporters) they might still qualify for protection by virtue of the creative choices made in organizing the WESTLAW® service in distinct topical databases. This would be an example falling under the second category.
A very similar situation was presented by the recent case of CCC Information Services, Inc. v. Maclean Hunter Market Reports, Inc.. n83 In Maclean the Second Circuit was faced with the issue of the copyrightability of the "Red Book," a periodical publication listing used car prices which the defendant had incorporated in its electronic database. n84 The court found that because the figures contained in the publication reflected an interpretation of the underlying data on part of the authors of the "Red Book," they were sufficiently original to satisfy the Feist standard. n85
As in Mead, the electronic database found to be infringing in Maclean would, if created under a licensing agreement, be protected as a factual compilation by virtue of the selection and arrangement of both the underlying data (the used cars price estimates) and the database itself (arrangement of data by make, model, year, etc.).
Then, electronic databases could meet the Feist standard either by virtue of the creative choices made in the selection and arrangement of the data they incorporate or of the creative choices made in the selection and arrangement of their own structure or both.
The third category, finally, poses the question of whether the selection and arrangement ephemerally created by the user of an electronic database can become the subject of copyright protection. Data extracted from the database in response to a query (database search) will not be protected by virtue of the selection and arrangement either of the data or of the database; however, it might very well be protected by its own selection and arrangement if the query is "creative" enough to meet the Feist standard. In practice, however, virtually any n86 database query should meet this criterion. n87

Comparing the U.S. and the EU Approaches
While under both the European Union and the U.S. approaches databases are eligible for copyright protection only if their selection and arrangement is sufficiently original (and such protection is limited to these copyrightable elements), the sui generis protection offered by the Database Directive to non-copyrightable electronic databases has no counterpart under U.S. law. n88
Other provisions of the Database Directive, moreover, appear to take positions contrary to U.S. law. The Directive, for instance, provides that any substantial changes to a database are deemed to create a new database which enjoys a new term of protection: n89 this, however, is not necessarily the case under U.S. law. While there appear to be no decisions on this issue, the balancing approach of Feist would seem to favor the interpretation that the copyright in the selection and arrangement of a database would not be renewed with each update to the database, or else the copyright would risk extending indefinitely in time, an undesirable, and arguably even unconstitutional, n90 result under the balancing of competing interests analysis. n91
In addition, the Directive gives the owner of the database the exclusive right to reproduce data extracted from the database: n92 again, this is not the case under U.S. law. In fact, the copyright afforded authors of factual compilations is limited under Feist to the copyrightable elements of the work, i.e. its selection and arrangement: quite clearly then the data extracted from the database would not be subject to the copyright held by the owner of the database and, as pointed out earlier, might even give rise to a new copyright by virtue of the selection and arrangement of the data extracted.

The Impact of the Database Directive on U.S. Databases
As previousely noted, the availability of protection under the Database Directive to the owners of U.S. databases is predicated upon the adoption of equivalent protective measures for EU databases in this country. While this is clearly not the case at present, Congress should consider introducing legislation akin to the Database Directive to provide sui generis protection against unfair extraction of databases for commercial purposes. n93

Constitutional Implications of Feist v. Rural Telephone
In addition, the adoption of sui generis legislation would overcome the constitutional objection to the copyrightability of factual compilations raised by Feist v. Rural Telephone. n94 According to Justice O'Connor's analysis in Feist, in fact, factual compilations would only be copyrightable if and to the extent to which their selection and arrangement could satisfy the constitutionally mandated originality requirement. n95 This approach would imply that if Congress were to amend the Copyright Act to afford copyright protection to electronic databases, the Supreme Court would construe the statute narrowly to cover only databases which satisfy the originality requirement. n96 By drafting sui generis legislation limited to the protection of electronic databases for the purpose of providing reciprocal protection to EU databases, on the other hand, Congress could rely either on the Commerce Clause n97 or on the Foreign Affairs Power to sidestep the originality requirement the Court has read into the Copyright Clause. Prof. Ginsburg argues that Congress might not have the power to enact under the Commerce Clause a statute it could not enact under the Copyright Clause without violating the Feist principle. n98 However, even if Feist's expansive constitutional interpretation of the Copyright Clause were found to preclude the enactment of such legislation pursuant to the Commerce Clause, it would still fall short of the broader scope of the Foreign Affairs Power recognized in Missouri v. Holland. n99 In Missouri v. Holland, the Supreme Court recognized the principle that in enacting laws pursuant to international obligations undertaken by treaty Congress' power is not limited by Art. 1 sec. 8 of the Constitution. n100 While the Court recognized that the Treaty Power is not limitless, it held that it may well be broader than the enumerated powers. n101 Thus if the sui generis protection were enacted for the purpose of satisfying the reciprocal treatment condition required by the Database Directive n102 under the terms of a bilateral agreement with the EU to extend protection to U.S. databases, the Congressional authority under the Foreign Affairs Power would overcome the constitutional objection raised by Feist.

The increasing trend toward the adoption of electronic communication and information management systems, reflected by the recent conference of the G7,103 makes the protection of information stored in electronic databases a primary concern for the future. In this context, the proposed Database Directive represents a positive step towards the recognition of an interest which has the potential of becoming vital in the information based society we are moving towards.
The United States should seriously consider adopting analogous legislation, particularly in view of increasing international effect of EU law. If the success met by the adoption of the Software Directive is any indication, the trend toward harmonization of European legislation dealing with modern technologies appears a foregone conclusion. In a recent decision, the Appeals Court of the Hague issued an injunction against patent infringement having effect throughout the Union. n104 The sui generis character of the Database Directive makes it an ideal candidate for supranational application: while other Directives might be subject to interpretation under domestic laws because of their integration into a pre-exisiting national legal order, the Database Directive creates an entirely new cause of action for unauthorized extraction of data from an electronic database for commercial purposes, which is regulated exclusively by the provisions contained in the Directive. This rationale would provide an ideal opportunity for the European Court of Justice to extend the applicability of Union law on supranational basis.
The adoption by the U.S. of legislation providing reciprocal rights would represent a significant step towards the harmonization of intellectual property legislation among industrialized nations, a goal which seems inevitable in light of the continuing trend toward the establishement of a global economic society.
1 The "sweat of the brow" doctrine was finally rejected by the Supreme Court in its landmark decision in Feist Publications, Inc. v. Rural Telephone Service, 499 U.S. 340 (1991).
2 36 O.J. C 308/1 (1993).
3 See Feist, supra note 1.
4 Detailed and up-to-date informations on the institutions and current initiatives of the European Union can be obtained on the World Wide Web under the European Union Home Page at
5 The European Union was first created by the 1957 Treaty of Rome establishing the European Economic Community, whose original members where Germany, Belgium, France, Italy, Luxembourg and the Netherlands. The United Kingdom, Ireland and Denmark later joined the Community in 1973. Greece joined the Community in 1981, followed by Spain and Portugal in 1986. The Treaty of Rome was amended by the Single European Act (SEA) in 1987 and finally by the Treaty of Maastricht establishing the European Union in 1992. Austria, Finland and Sweden were the latest members to join the Union in 1995.
6 With the entry into force of the Trety of Maastricht, the legislative role of the European Parliament has been expanded. Through the co-decision procedure, the Parliament can now enact Directives in concomitance with the European Council.
7 In 1989, a European Court of First Instance was created to assist the European Court of Justice. This court deals primarily with actions brought by individuals under Union law, while the European Court of Justice deals primarily with actions brought by governmental entities of the member states.
8 As noted above, Directives can now be also enacted by the European Parliament in concurrence with the European Council.
9 Case 26/62,Van Gend & Loos, 1963 ECR 1.
10 Case 6/64, Costa-ENEL, 1964 ECR 23; Case 106/77, Simmenthal II, 1977 ECR 629.
11 See, e.g., Software Directive, infra note 24.
12 Case 14/83, Von Colson and Kamann, 1984 ECR 1891.
13 These include Directives, Regulations, Decisions and, to a lesser extent, Recommendations and Opinions.
14 G. De Burca, Giving Effect to European Community Directives, 1992 MOD. L. REV. 231-233.
15 Cases C-6 and C-9/90, Francovich and Bonifaci, 1991 ECR I-5357.
16 Proposal for a Council Directive on the Legal Protection of Databases, 35 O.J. C 156/4 (1992).
17 Amended proposal for a Council Directive on the Legal Protection of Databases [hereinafter Database Directive], 36 O.J. C 308/1 (1993).
18 Id., Art.2 sec.3.
19 Id., Art.10 sec.2.
20 Id., Art.1 sec.1.
21 While this limitation may appear surprising at first, it should be noted that the Directive was drafted with the narrow objective of dealing with the problem of electronic databases.
22 Id.
23 Id.
24 Council Directive on the Legal Protection of Computer Programs [hereinafter Software Directive], 91/250/EEC, 34 O.J. L 122/42 (1991).
25 Database Directive, supra note 17, Art.2 sec.4.
26 Id., Art.3 sec.1.
27 Id., Art.3 sec.3.
28 Id., Art.3 sec.4.
29 Id.
30 Id., Art.5 sec.1.
31 Id., Art.5 sec.2.
32 Id.
33 Id.
34 Id.
35 Id., Art.2 sec.3.
36 Id., Art.6.
37 Id.
38 Id.
39 Id.
40 Id.
41 Id.
42 Id.
43 Id.
44 Id.
45 Id., Art.7.
46 Id., Art.7 sec.1.
47 Id., Art.7 sec.2.
48 Id., Art.7 sec.3.
49 Id., Art.8 sec.1.
50 Id.
51 Id., Art.9 sec.1.
52 Id., Art.9 sec.2.
53 Id., Art.10 sec.2.
54 Id.
55 Id.
56 Id., Art.11 sec.1.
57 Id., Art.11 sec.2(a).
58 Id., Art.11 sec.2(b).
59 Id., Art.11 sec.5.
60 Id., Art.11 sec.6.
61 Id., Art.12 sec.1.
62 Id., Art.12 sec.2.
63 Id., Art.13 sec.1.
64 Id., Art.13 sec.2.
65 Id., Art.15 sec.2.
66 Id., Art.13 sec.3.
67 Id. at 6.
68 17 U.S.C. sec. 103(a) (1976).
69 499 U.S. 340 (1991).
70 Id. at 342-43.
71 Id. at 343-44.
72 Id. at 345-46.
73 Id. at 347-48.
74 Id. at 349.
75 Id. at 349.
76 Id. at 352-54.
77 Id. at 363-64.
78 799 F.2d 1219 (8th Cir. 1986), cert. denied, 479 U.S. 1070 (1987).
79 Id. at 1221-22.
80 Id. at 1226-27.
81 Cf. Carl J. Khalil, Are Page Numbers Really Copyrightable? The Effect of Feist on the West Publishing v. Lexis Case, 76 J. PAT. & TRADEMARK OFF. SOC'Y 807 (1994).
82 Note, for example, that "star-paging" is available on WESTLAW® only for West publications and other publications which have granted West a license to use their page numbers.
83 44 F.3d 61 (2d Cir. 1994).
84 Id. at 63-64.
85 Id. at 65-68.
86 See, e.g. Bellsouth Advertising & Publishing Corp. v. Donnelley Information Publishing, 999 F.2d 1436 (11th Cir. 1993) (holding that the selection and arrangement of a yellow-pages directory was sufficiently original to satisfy the Feist standard).
87 In Mead the court found that the arrangement of opinions in West's reporters was sufficiently original. Since West reporters are simply organized by court and date, any query other than a search for a single case by name may satisfy the Mead standard.
88 Except possibly under the state law of misappropriation. 17 U.S.C. sec. 301 expressly that protection of databases under state law is not preempted by Federal law.
89 Database Directive, supra note 17, Art.12 sec. 2.
90 Congress has the power to promote progress "by securing for limited times to authors . . . the exclusive right to their . . . writings . . . .", CONST. Art.1 sec. 8 (emphasis added).
91 But see 17 U.S.C. sec. 101 (1976).
92 Database Directive, supra note 17, Art.6.
93 See Note, Standards of Protection for Databases in the European Community and the United States: Feist and the Myth of Creative Originality, 27 GEO.WASH. J..I.Nt'l L.. & ECON. 457 (1994).
94 Feist, supra note 1, at 345-46.
95 Id.
96 See Note, A Selective View of History: Feist Publications, Inc. v. Rural Telephone Service Co., 34 B.C. L. .REV. 137, 159 (1992).
97 See generally, Jane C. Ginsburg, No "Sweat"? Copyright and Other Protection of Works of Information After Feist v. Rural Telephone, 92 COLUM. L.REV. 338, 369 (1992).
98 Id. at 373-374.
99 252 U.S. 416 (1920).
100Id. at 418.
101 Id. at 418.
102 Database Directive, supra note 17, at 6.
103 EU: Conclusions of G7 Summit "Information Society Conference", Rapid, February 28, 1995, available in WESTLAW, INT-NEWS Database.
104 Europe : Ares-Serono Wins Patent Suit Against Organon In Europe, Biotechnology Bulletin, April 2, 1994, available in WESTLAW, INT-NEWS Database.