This chapter deals with two basic issues. First, it examines the application of American copyright law and the tort of misappropriation, part of the wider law of unfair competition, to databases. The discussion of copyright is relatively straightforward and brief (this is because the American standard of originality was discussed in some detail in Chapter 2). However, the American copyright provisions on circumvention of technological measures are also discussed as they provide a means of obtaining de facto protection for the contents of databases, even in circumstances where the copyright protection for a database is minimal. This section on copyright also deals with the American defence of fair use, because the latest legislative proposals for sui generis protection have included a defence that is analogous to fair use. Consequently, an appreciation of the defence of fair use in copyright is necessary to an understanding of the proposed analogous defence to sui generis claims. In addition, the broad, discretionary defence of fair use needs to be compared with the far more restrictive exceptions contained within the Directive.

The discussion concerning the tort of misappropriation is considerably longer than the treatment of copyright for a number of reasons. It deals with the history of the tort, including its chequered history since its initial acceptance in 1918 by the American Supreme Court, the subsequent judicial reluctance to apply it and the more recent application of it to provide protection separate from that provided by copyright.