Should Singapore follow the EU in creating sui generis protection for databases? Md. Rizwanul Islam* From mediaeval to modern times In mediaeval times, authors sought to enlighten their fellows or teach their pupils through their work. 1 They therefore expected their works to be copied, extracted, and rewritten without the need for authorization. 2 The advent of the printing press, which first provided the scope for easy and inexpensive multiple copies, later threatened the commercial investment of stationers, printers, and publishers until copyright protection emerged in order to prevent unauthorized copying. 3 With the passage of time, the emergence of sophisti- cated computer databases, like new technologies in ancient times, caught the world’s IP system unpre- pared 4 and posed fresh questions of it. Under traditional copyright, in order to receive protection, a compilation must satisfy some degree of originality or creativity in the selection or arrangement of data used in that compilation, or other indicia of creative authorship. 5 But a rigorous application of this traditional test to modern databases is unhelpful, since the compilation, although it may not be original, may well involve substantial labour and investment. Propo- nents of database protection legislation rightly argue that to deny protection to database creators on the ground that the database lacks originality may result in a lack of incentive to create and publish costly data- bases, to the eventual detriment of society as a whole. In contrast, there was apprehension that too broad and liberal a protection, like that offered by the EU Database Directive, 6 might effectively allow monopol- ization of the data itself and ultimately jeopardize research and education. 7 Supporters of this position maintain that only a small amount of selection or arrangement is necessary to bring a database within the protection of the law and that, despite the thinness of this protection, it is quite sufficient to protect against wholesale copying. They derive support from US case law that the primary objective of copyright is not to reward the labour of authors but ‘to promote the Pro- gress of Science and useful Arts’. 8 Accordingly, identification of the ideal path to balan- cing the competing interests of database creators and * PhD Candidate, School of Law, Macquarie University (Sydney, Australia), Lecturer, Faculty of Law, Northern University Bangladesh (on study leave), LLM (Intellectual Property & Technology Law), National University of Singapore, LLB (Honours) University of Dhaka. Email: rizwanuli@alumni.nus.edu.sg. This article is a modified version of a paper written as part of the author’s LLM degree requirements. The author acknowledges the support of the Macquarie University Research Excellence Scholarship. He would like to thank the anonymous referee and editor of the journal, Professor Jeremy Philips, for their useful comments on an earlier version of this paper. 1 HA Devci, ‘Databases: is sui generis a stronger bet than copyright?’ (2004) 12 International Journal of Law and Information Technology, 178, 179. 2 ibid. 3 ibid. 4 MJ Bastian, ‘Protection of “Noncreative” databases: harmonization of United States, foreign and international Law’ (1999) 22 Boston College International and Comparative Law Review 425, 425. 5 ibid. 6 Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the Legal Protection of Databases, Official Journal L 077, 27/03/1996, 20. 7 It is explained below that this apprehension has been proved to be exaggerated as the European Court of Justice (ECJ) has interpreted the right in a restrictive manner. 8 Twentieth Century Music Corp. v Aiken, 422 US 151, 156 (1975). Journal of Intellectual Property Law & Practice, 2009, Vol. 4, No. 9 ARTICLE 665 # The Author (2009). Published by Oxford University Press. All rights reserved. Key issues † There are patent distinctions between traditional subject matters of copyright and commercial databases and this raises the issue of devising an appropriate legal regime for them. † The rigour of the US Supreme Court decision in Feist epitomizes the hardship of database owners in protecting their commercial interests through copyright, but there was some unease about the apparent broad reach of the EU Database Directive. However, the restrictive interpretation by the ECJ is a welcome development. † In the absence of adequate alternative legal remedy for databases, Singapore should design a protection regime along the line of the Database Directive taking into account its judicial interpretations.