Regulating Access to Databases Through Antitrust Law, 2006 Stan. Tech. L. Rev. 7 (2006)

It is largely uncontroversial that the “creative” effort in a database will be protected by copyright. However, any effort to extend protection to purely factual databases creates difficulties in determining the proper method and scope of protection. This Paper argues that antitrust law can be used to supplement intellectual property law in maintaining the “access-incentive” balance with respect to databases. It starts from the premise that a trend toward “TRIPs-plus” rights in databases, whatever its form, is inevitable. The reason is a simple, but compelling one: business needs shape the law. Various means of database access regulation are explored and contrasted with antitrust law. This Paper concludes that antitrust offers an alternative that more accurately reflects commercial expectations. However, regulators need to be aware of the limitations of applying antitrust law to a regime delicately tuned with pre-existing endogenous checks as well as the effects of their application on innovation by those spurred on the assurance of monopoly profits. In this regard, antitrust law must prove itself to be capable of sophisticated regulation if its interference in the database industry is to be justified