Basic Proposal for the Substantive Provisions of the Treaty on

Basic Proposal for the Substantive Provisions of the Treaty on
APPENDIX 13
Draft Treaty on Databases (Geneva Conference, 1996)
Document CRNR/DC/6 (30 August 1996)
Basic Proposal for the Substantive Provisions
of the Treaty on Intellectual Property in
Respect of Databases to be Considered
by the Diplomatic Conference
prepared by the Chairman of the Committees of Experts on a
Possible Protocol to the Berne Convention and on a Possible
Instrument for the Protection of the Rights of Performers
and Producers of Phonograms
Note: The text of the draft treaty follows, but
the accompanying commentary has been
omitted.
Preamble
The Contracting Parties,
Desiring to enhance and stimulate the production, distribution and international trade in
databases,
Recognizing that databases are a vital element
in the development of a global information
infrastructure and an essential tool for promoting economic, cultural and technological
advancement,
tion in a manner as effective and uniform as
possible,
Emphasizing that nothing in this Treaty
shall derogate from existing obligations that
Contracting Parties may have to each other
under treaties in the field of intellectual
property, and in particular, that nothing in this
Treaty shall in any way prejudice the rights
granted to authors in the Berne Convention
for the Protection of Literary and Artistic
Works,
Have agreed as follows:
Article 1
[Scope]
Recognizing that the making of databases
requires the investment of considerable
human, technical and financial resources but
that such databases can be copied or accessed at
a fraction of the cost needed to design them
independently,
(1) Contracting Parties shall protect any
database that represents a substantial investment in the collection, assembly, verification,
organization or presentation of the contents of
the database.
Desiring to establish a new form of protection
for databases by granting rights adequate to
enable the makers of databases to recover
the investment they have made in their databases and by providing international protec-
(2) The legal protection set forth in this Treaty
extends to a database regardless of the form or
medium in which the database is embodied,
and regardless of whether or not the database is
made available to the public.
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Draft Treaty on Databases 1996
available to the public at a place and at a
time individually chosen by each member
of the public.
(3) The protection granted under this Treaty
shall be provided irrespective of any protection
provided for a database or its contents by copyright or by other rights granted by Contracting
Parties in their national legislation.
(4) The protection under this Treaty shall not
extend to any computer program as such,
including without limitation any computer
program used in the manufacture, operation or
maintenance of a database.
Article 2
[Definitions]
For the purposes of this Treaty:
(i) ‘database’ means a collection of
independent works, data or other
materials arranged in a systematic or
methodical way and capable of being
individually accessed by electronic or
other means;
(ii) ‘extraction’ means the permanent or
temporary transfer of all or a substantial
part of the contents of a database to
another medium by any means or in any
form;
(iii) ‘maker of the database’ means the natural
or legal person or persons with control
and responsibility for the undertaking
of a substantial investment in making a
database;
(iv) ‘substantial investment’ means any qualitatively or quantitatively significant
investment of human, financial, technical
or other resources in the collection,
assembly, verification, organization or
presentation of the contents of the
database;
(v) ‘substantial part’, in reference to the contents of a database, means any portion of
the database, including an accumulation
of small portions, that is of qualitative or
quantitative significance to the value of
the database;
(vi) ‘utilization’ means the making available
to the public of all or a substantial part of
the contents of a database by any means,
including by the distribution of copies, by
renting, or by on-line or other forms of
transmission, including making the same
Article 3
[Rights]
(1) The maker of a database eligible for protection under this Treaty shall have the right
to authorize or prohibit the extraction or
utilization of its contents.
(2) Contracting Parties may, in their national
legislation, provide that the right of utilization
provided for in paragraph (1) does not apply to
distribution of the original or any copy of any
database that has been sold or the ownership of
which has been otherwise transferred in that
Contracting Party’s territory by or pursuant to
authorization.
Article 4
[Rightholders]
(1) The rights provided under this Treaty shall
be owned by the maker of the database.
(2) The rights provided under this Treaty shall
be freely transferable.
Article 5
[Exceptions]
(1) Contracting Parties may, in their national
legislation, provide exceptions to or limitations
of the rights provided in this Treaty in certain
special cases that do not conflict with the
normal exploitation of the database and do not
unreasonably prejudice the legitimate interests
of the rightholder.
(2) It shall be a matter for the national legislation of Contracting Parties to determine the
protection that shall be granted to databases
made by governmental entities or their agents
or employees.
Article 6
[Beneficiaries of Protection]
(1) Each Contracting Party shall protect
according to the terms of this Treaty makers of
databases who are nationals of a Contracting
Party.
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Appendix 13
(2) The provisions of paragraph (1) shall also
apply to companies, firms and other legal
entities formed in accordance with the laws of
a Contracting Party or having their registered
office, central administration or principal
place of business within a Contracting Party;
however, where such a company, firm or other
legal entity has only its registered office in the
territory of a Contracting Party, its operations
must be genuinely linked on an on-going basis
with the economy of a Contracting Party.
years from the first day of January in the year
following the date when the database first met
the requirements of Article 1(1).
Article 7
years from the first day of January in the year
following the date when the database was first
made available to the public.
[National Treatment and
Independence of Protection]
(1) The maker of a database shall enjoy in
respect of the protection provided for in this
Treaty, in Contracting Parties other than the
Contracting Party of which he is a national, the
rights which their respective laws do now or
may hereafter grant to their nationals as well as
the rights specially granted by this Treaty.
(2) Protection of a database in the Contracting Party of which the maker of the database is
a national shall be governed by national
legislation.
(3) The enjoyment and the exercise of rights
under this Treaty shall be independent of the
existence of protection in the Contracting
Party of which the maker of a database is a
national. Apart from the provisions of this
Treaty, the extent of protection, as well as the
means and extent of redress, shall be governed
exclusively by the laws of the Contracting Party
where protection is claimed.
(2) In the case of a database that is made
available to the public, in whatever manner,
before the expiry of the period provided for
in paragraph (1), the term of protection shall
endure for at least
Alternative A: 25
Alternative B: 15
(3) Any substantial change to the database,
evaluated qualitatively or quantitatively,
including any substantial change resulting
from the accumulation of successive additions,
deletions, verifications, modifications in organization or presentation, or other alterations,
which constitute a new substantial investment,
shall qualify the database resulting from such
investment for its own term of protection.
Article 9
[Formalities]
The enjoyment and exercise of the rights provided for in this Treaty shall not be subject to
any formality.
Article 10
[Obligations concerning Technological
Measures]
[Term of Protection]
(1) Contracting Parties shall make unlawful
the importation, manufacture or distribution
of protection-defeating devices, or the offer or
performance of any service having the same
effect, by any person knowing or having
reasonable grounds to know that the device or
service will be used for, or in the course of, the
exercise of rights provided under this Treaty
that is not authorized by the rightholder or the
law.
(1) The rights provided for in this Treaty shall
attach when a database meets the requirements
of Article 1(1) and shall endure for at least
(2) Contracting Parties shall provide for
appropriate and effective remedies against the
unlawful acts referred to in paragraph (1).
(4) Makers of databases who are not nationals
of a Contracting Party but who have their
habitual residence in a Contracting Party shall,
for the purposes of this Treaty, be assimilated
to nationals of that Contracting Party.
Article 8
Alternative A: 25
Alternative B: 15
(3) As used in this Article, ‘protectiondefeating device’ means any device, product or
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Draft Treaty on Databases 1996
component incorporated into a device or
product, the primary purpose or primary effect
of which is to circumvent any process, treatment, mechanism or system that prevents or
inhibits any of the acts covered by the rights
under this Treaty.
Article 11
[Application in Time]
(1) Contracting Parties shall also grant protection pursuant to this Treaty in respect of databases that met the requirements of Article 1(1)
at the date of the entry into force of this Treaty
for each Contracting Party. The duration of
such protection shall be determined by the
provisions of Article 8.
(2) The protection provided for in paragraph
(1) shall be without prejudice to any acts concluded or rights acquired before the entry into
force of this Treaty in each Contracting Party.
(3) A Contracting Party may provide for conditions under which copies of databases which
were lawfully made before the date of the entry
into force of this Treaty for that Contracting
Party may be distributed to the public, provided that such provisions do not allow distribution for a period longer than two years from
that date.
Article 12
tion, trade secrets, data protection and privacy,
access to public documents and the law of
contract.
Article 13
[Special Provisions on
Enforcement of Rights]
(1) Special provisions regarding the enforcement of rights are included in the Annex to the
Treaty.
(2) The Annex forms an integral part of this
Treaty.
Alternative B
Contracting Parties shall ensure that the
enforcement procedures specified in Part III,
Articles 41 to 61, of the Agreement on TradeRelated Aspects of Intellectual Property Rights,
Including Trade in Counterfeit Goods, Annex
1C, of the Marrakesh Agreement Establishing
the World Trade Organization, concluded on
April 15, 1994 (the ‘TRIPS Agreement’), are
available under their national laws so as to
permit effective action against any act of
infringement of the rights provided under this
Treaty, including expeditious remedies to prevent infringements, and remedies that constitute a deterrent to further infringements. To
this end, Contracting Parties shall apply mutatis mutandis the provisions of Articles 41 to 61
of the TRIPS Agreement.
[Relation to Other Legal Provisions]
The protection accorded under this Treaty
shall be without prejudice to any other rights
in, or obligations with respect to, a database
or its contents, including laws in respect of
copyright, rights related to copyright, patent,
trademark, design rights, antitrust or competi-
ANNEX
...
Note: The draft provisions on enforcement
contained here are not set out as they were
modelled largely upon those in articles 41–61
of the TRIPs Agreement.
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