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16 August 2010
Within the context of the digital era, the technological revolution (in particular the emergence and boom of the Internet and new communications tools) has resulted in the appearance and consolidation of new economic paradigms based on the increasing importance of intangible assets. Within this framework, a variety of new activities and industries have emerged, one of which is the compilation of information in databases.
Databases have acquired paramount importance, mainly for their use in commercial activities. The information that they gather can be used, for example, to design marketing programmes (ie, databases containing information about potential clients) or to reduce risks when granting credit (ie, databases containing individuals' credit histories).
Given that the creation of such databases generally entails significant investment, their creators are always in search of the best legal protection for their investments.
A basic tool for obtaining such protection is the unfair competition legal regime, which tries to avoid parasitic conduct that takes advantage of the efforts of others. In all modern legal systems and within the framework of the market economy (primarily in the knowledge economy), the vital importance of the unfair competition legal regime is widely recognised. Many activities punishable by the unfair competition rules affect IP rights.
Although 'unfair competition' cannot be defined as an absolute concept, it is clear that the punishable activities have in common the use of incorrect or reprehensible means in order to compete. Consequently, taking advantage of others' efforts by means of parasitic activities is generally considered unfair. In the specific case of databases, the effort refers to the required investment of time and economic resources in compiling the database.
In Argentina, based on what is set forth in Article 10bis of the Paris Convention and local rules, and within the context of the unfair competition legal regime, steps can be taken to obtain legal protection for databases. However, Argentina's unfair competition legal framework is still insufficient, as it is made up of isolated rules and there is no cohesive regime. Furthermore, enforcement by the courts remains rare.
Protection may also be obtained under the rules protecting copyright or by means of contract clauses. However, the copyright rules require originality as an excluding requirement, thus limiting the exclusive right acknowledgment to original databases, and contract clauses are not enforceable against third parties that are not related to the database's licence of use.
Under Argentine law, databases are mainly protected by the Copyright Law (11,723). However, although the content of the first section of the law does not specifically indicate that data compilations must comply with the originality requirement, legal authors generally claim - in accordance with what is stated above - that the protection granted by this law is exclusively limited to original databases.
In this sense, Section 2.5 of the Bern Convention already envisages the possibility of protecting compilations which are literary or artistic works. Progress was also made with the approval of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) in 1994, which established that:
"Compilations of data or other material, whether in machine readable or other form, which by reason of the selection or arrangement of their contents constitute intellectual creations shall be protected as such."
This means that although the compiled data lacks originality, protection can be obtained under the TRIPs system when the selection or arrangement of the data can be assimilated to an intellectual creation.
In order not to leave non-original databases without protection and to provide special protection to the creator's economic investment in the database, certain countries (eg, the EU member states and Mexico) have recognised a sui generis right, regardless of any originality criterion.
Since Argentine law does not acknowledge a sui generis right, the legal protection of databases could be understood to be limited to original databases. However, in several judgments (eg, Errepar and Axesor) the courts have acknowledged the need to provide protection for database creators that have been damaged by the parasitic activities of competitors trying to take advantage of their efforts and investment.
In Axesor, a first instance criminal judge prosecuted a website creator for IP rights fraud on the grounds that he had partially copied information contained in another database. On appeal, the court of appeals in criminal matters confirmed the first instance judge's decision.
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