0.3 Rights, exceptions, and limitations  (Page 5/12)

In addition to the neighboring rights attached to performances, some countries recently have recognized rights in databases, semiconductor chip designs, boat-hull designs, and so forth. These rights are commonly known as  sui generis   rights -- although the distinction between "neighboring rights" and "sui generis" rights is largely arbitrary. Of these new rights, the only one that might significantly affect the activities of librarians is the protection of databases. As indicated above, most countries use ordinary copyright law to protect original ways in which the data in a database is selected or arranged. But, so far, only in the European Union are the  contents  of the database protected.

The EU's database protection system is highly controversial. Critics contend that it is unnecessary to provide incentives for the creation of databases and merely impedes the flow of factual information. However, efforts to test this criticism empirically by comparing the rates of database innovation in countries with and without database protection rules have thus far been inconclusive. Until the dispute is resolved, database protection is unlikely to spread to developing countries.

Rental and lending rights

In addition to the rights described above, in some countries the holders of copyrights in some kinds of works have been given rights of various sorts in situations where their works are temporarily made available to other persons. Two quite different rights must be distinguished. A  rental right  governs situations in which a copy of a copyrighted work is rented to someone for commercial advantage. A  public lending right  governs situations in which a copy of a copyrighted work is provided temporarily by an institution to a patron for free. The lending practices of almost all public and academic libraries would fall under the second heading.

Both rights are relatively new and remain highly controversial. The TRIPS Agreement (in Article 11), the WCT (in Article 7), and the WPPT (in Articles 9 and 13) now all require member countries to recognize rental rights -- but only with respect to three narrow categories of works: computer programs, movies, and phonograms. None of these agreements -- and no other multilateral treaty -- requires member countries to recognize public lending rights. Thus far, only one regional agreement requires member countries to establish public lending rights: the  1992 Rental and Lending Rights Directive of the EU . Articles 1 and 2 of that directive require members to extend both rental and lending rights, not just to performers, phonogram producers, and film producers, but also to "authors." Article 5 of the directive permits member countries to limit the lending right, but only if authors are compensated, or to exempt categories of institutions from its coverage, but only if they do not thereby effectively exempt all institutions. The directive proved extremely controversial, and formal proceedings were necessary to force several EU members to conform to it.