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Legal protection of the web page as a database

Web Page

di Davide Mula, Mirko Lobina

web page ABSTRACT Nowadays the Web Page is one of the most common media used by people, institutions and companies to promote themselves, to share knowledge and to get through to every body in every part of the world. In spite of that the web page doesn’t be entitled to a specific legal protection and because of this every investments of time and money that stay off-stage aren’t protected by an unlawfully used. Seeing that no country in the world has a specific legislation on this issue in this chapter we develop a theory that want to give a legal protection to web page using laws and treatment that are just present. In particular we have developed a theory that consider web page as a database so to extend database’s legal protection to web page. We start to analyze each component of database and to find them in a web page so that we can compare those juridical goods. After that we analyze present legislation concern database and in particular World Intellectual Property Organization Copyright Treatments and European Directive 96/92/CE  that we consider as the better legislation in this field. In the end we line future trends that seem to appreciate and apply our theory. INTRODUCTION Nowadays, thousands of web pages offer an heterogeneous variety of digital information (i.e., text, audio, video and images). Such contents can be available in a public way: an anonymous user could download, manipulate and use them maliciously, and, thus, establishing their ownership could be a serious problem in many circumstances. The tendency is to face this problem at the same time, using technical and judicial approaches. On one hand, we can consider strategies oriented to the protection of the intellectual property, such as insertion of watermarks or, directly, limitations in the possibility of fruition of the contents published in the Web page (Braudaway, 2000). Secondly, we can refer to the judicial disciplines created expressly for the protection of the copyrights on digital information. In the specific, in this work, we explain our theory that try to give a legal protection to web page considering it as a database, judicial good that have a specific legislation. The chapter is organized as follows. At first we look at a judicial generalization of the conception of database analyzing every its components and after we compare web page and database introducing the guardianship of the web page as a database. In the last part we refer about the future trends and propose our conclusions on this topic. BACKGROUND The first institution that had issue a database protection is the European Community by the directive 96/9/CE. The course to give a protection to database was started on April 15th, 1992, when the European Commission issued a formal proposal for a Directive on the legal protection of databases, which was later amended by the Commission on October 4th, 1993. After four years of discussions and proposals in the 1996 was approved the last version and issued the directive 96/9/CE. The EU Database Directive was created to harmonize the intellectual property laws regarding databases of the 18 countries of the European Union by supplementing copyright to protect databases produced by sweat of the brow (Boyle, 2001). The Directive creates a new kind of intellectual property protection: a sui generis right. Sui generis is a Latin expression that means that something is linked to a specific requisite for admission, in other words this particular protection is given only to the database that meet all the requirements (Autelitano, 1999). Is important to observe that the term of protection is 15 years, but each time the database is updated significantly, the entire database and not just the updated parts receives another 15 years of protection. Consequently, active databases can be protected in perpetuity. The Database Directive has created a two-tiered approach to the database’s protection: on one hand database that by originality of selection and arrangement qualify for copyright protection under national laws will enjoy the same rights as other copyrighted works and, on the other hand, database that do not meet such requirements will, nonetheless, be protected against unfair extraction under the terms of the Directive. The top tier provided copyright protection for original selection and arrangement of facts in the database. In other words the authorship is given when the web page has the requirement of  originality of selection and arrangement and is important to observe that to have this legal protection the author doesn’t need to demonstrate his investments in term of money or time. A second tier provided sui generis protection, prohibiting the unfair extraction of a substantial part of a database reflecting significant investment. A database could simultaneously receive both types of protection: copyright protection for the expression, in other word the selection and arrangement of the data; and sui generis protection against the extraction of a qualitatively substantial part of the data itself. In other words the ownership, or sui generis protection, is given only when the author of the web page could prove his investments that must be considerable. About the concept of investment the European Court of Justice, in the case C-444 02, established that The expression ‘investment in …the obtaining …of the contents ’of a database in Article 7(1) of Directive 96/9 must be understood to refer to the resources used to seek out existing independent materials and collect them in the database. It does not cover the resources used for the creation of materials which make up the contents of a data-base. Moreover we can observe that “The right provided for by the Directive allows the maker of a database to prevent the use of the data it contains under certain circumstances. It is intended to protect databases or their contents without protecting the information they contain as such. It thus indirectly protects the investment involved in the making of the database” (Court of Justice of the European Communites, 2004, p. 3). The Directive provides that databases be protected by copyright under national legislation to the extent that their selection and arrangement are sufficiently original to constitute the author’s own intellectual creation. Thus to prevent that in case a member nation did not provide similar protection under its laws it would be forced to amend them to comply with the term of the Directive (Marino, 2006). If the European Community has issued the first law that give a protection to database in USA even today there is not a specific law to protect database’s owners and a soft form of protection is given only by WIPO Copyright Treatment (Braun, 2003). We think that is important to remember that the World Intellectual Property Organisation (WIPO) is a special organ of the UN that guarantees the interests and rights of inventors and those who hold the right of intellectual protection. Besides having eased the conclusion of multilateral accords for the protection of International patents, brands, design and copyrights, the WIPO is active in the field of technical cooperation and it backs member states in creating structures that allow the effective protection of immaterial goods. In spite of everything the course to issue database’s law is begun in 1978, but nowadays is not concluded. In 1978 the National Commission on New Technological Uses of Copyrighted Works submitted a report, which states that computer databases fall within the protection of copyright as compilations. The House Report concluded that the term literary work includes computer databases but didn’t gave to interpreters any clarification about the way to protect tangible database. In 1991, the Supreme Court addressed this question in Feist Publications v. Rural Telephone Co. Feist copied Rural’s collection white page listing in order to compile its own (Gorman, 1992; Ghidini, 2001). The District Court granted summary judgment to Rural, relying on the sweat of the brow doctrine, which justified protection because of the work involved in selection and arrangement  client’s data. The Supreme Court rejected the District Court’s sentence and the sweat of the brow doctrine because, with the Copyright Act of 1976, Congress made it clear that originality was a requirement for copyright protection, and in this particular case Rural’s database does not have the originality requirement (Hayden, 1991; Askanazi, 2002). This sentence demonstrate that what the House Report said in 1978 was unclear and show how specific database’s protection is necessary. To explain the doctrine known as sweat of the brow we must consider that over the course of the nineteenth century, two rationales developed for protecting compilations under copyright. The earliest cases identified the constructor’s effort, consider as his own expense, or skill, or labor, or money, as the critical contribution justifying protection [37]. The sweat of the brow aims to protect the value of thus effort extending copyright protection in a compilation beyond selection and arrangement to the facts themselves or, in other word, to the effort [29]. Before this Supreme Court sentence, several US District Courts had granted copyright protection to a collection of facts, such as a database, if the author of the database required a lot of effort to collect the facts or the data in general. Thus District Courts have applied the sweat of the brow theory that give protection to database as what we have said above. Under such protection, it was not even allowed to extract individual facts from the collection [10]. Under US law, the eligibility for copyright protection of electronic databases depends on the interaction of two contrasting but well established principles: the non-copyrightability of facts and the copyrightbility of factual compilations. At the end we can observe that in Europe database protection is effective and complete, but in USA there is not a specific protection for database and, for this reason, that the only way to protect database is to apply the Copyright Act and the WIPO Copyright Treatment. While under both the European Union and the US approaches databases are eligible for copyright protection only if their selection and arrangement is sufficiently original, the sui generis protection offered by the directive 96/9/CE to non-copyrightable electronic databases has no counterpart under US law (McCurdy, 2003). Up until here we have saw database’s legislation in Europe and in USA but nothing about web page’s protection. The reason is that any country in the word have issued a web page’s law and for this reason we are trying to develop a theory that start from database legislation and arrive to give a specific protection to web page. We further our thesis because we think that is very important give a specific protection to web page, but at the same time we must consider which action are permitted by present legislation. DEFINITION OF DATABASE AND WEB PAGE The object of our research is to think about a legal protection to web page consider as a whole. Indeed before today we have a legal protection for music, movie, photographs and software, but there isn’t any law or treatment that protect web page as a complete work in spite of the money that many company invest in this work. We consider the web page as a judicial good which can be protected via an analogical interpretation of directive 96/9/CE and WIPO Copyright Treaty, adopted in Geneva on December 20, 1996, which is related to the judicial protection of database (Butler, 2000). Both of them consider databases as a collection of information, be they rough or elaborate, they are generally about determined topics or they contain material that has been organized in order to allow the user to research and get the information. Directive 96/9/CE define database as a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means and WIPO Copyright Treatment define database as a compilations of data or other material, in any form, which by reason of the selection or arrangement of their contents constitute intellectual creations, are protected as such. We can observe that directive 96/9CE and WIPO Copyright Treatment give a similar definition of databases and, more or less, same rights to the owner of database (Brock, 1996). This point is very important because our research want to observe how we can compare web page and database to extend a judicial protection from the second to the first. Because the information can be about private subjects or companies, the risk that databases can affect the rights of various categories of subjects is real. The latter are protected by many countries, we analyze how are protected in the European Union and in USA (Davidson, 2003). In foreseeing the specific forms of protection for that databanks , WIPO and UE tried to shield the tiring activity of data collection, selection and verification of questions. This type of protection intends to allow the creator of databanks to ban other subjects from putting their hands on full or partial information available in the databank. With the birth of digital technology databases have acquired a major potential of stocking and collecting information without leaving out the crucial economic factor. The European Union and WIPO’s Member State considers databases as an efficient and precious instrument for the growth of commerce and thus it each one have decided to extend a uniform and specific protection. The directive 96/9/CE has, on one hand, left protection via single orders untouched, adding, on another hand, a form of sui generis protection which allows the protection of investments made, by attributing to the constructor an exclusive right on the information container in the database (Hayes, 2000). Also the WIPO Copyright Treatment give a particular protection to database’s constructor mentioning explicitly without prejudice to any copyright subsisting in the data or material contained in the compilation Now that the reasons and interests in creating a specific protection of databases has been discussed, the judicial nature of this feat needs to be clarified, in order to then analyse the adaptability of this form of protection to the web pages. The Database The term “Data base” refers to all types of data collection, be they rough or elaborate, as long as they deal with specific topics and are organized in order to allow the user to research and obtain the said information. Its too obvious that, explained in this manner, the definition of a database could include various entities, different because of content and the complexity (Hicks, 1987). An encyclopaedia, dictionary, Jurisprudence material and even telephone directories could be included in these definitions; the common element between these entities is that they are instruments of collection and used for obtaining information, and thus, needing a specific protection against copy, especially in the digital format. Its obvious that digital technology offers greater possibilities than paper, be it in the proliferation of databases and even in their creation, allowing the insertion of texts, but even images, films and sounds (Grutzmacher, 1999). A legal definition of “database” is given by the community legislator via the directive 96/9/CE, which in art. 1 comma 2 declares that for the purposes of this Directive, ‘database` shall mean a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means. In follow of what we say above we can assert that this definition could be consider good also from the WIPO Copyright Treatment point of view, indeed WIPO Treatment definition don’t added anything and in general we can consider it less accurate than directive’s definition. Later on the legislator decided to add onto article 3 that 1. In accordance with this Directive, databases which, by reason of the selection or arrangement of their contents, constitute the author’s own intellectual creation shall be protected as such by copyright. No other criteria shall be applied to determine their eligibility for that protection. 2. The copyright protection of databases provided for by this Directive shall not extend to their contents and shall be without prejudice to any rights subsisting in those contents themselves. The protection of databases in linkage with copyright had already been granted by art. 10 number 2 of the TRIPs on the 15th of April 1994. The following analysis is indispensable ‘cause, if the community directive grants protection to the databases which, by reason of the selection or arrangement of their contents, constitute the author’s own intellectual creation, art. 10 at number 2 of the TRIP accord grants similar protection to all compiled data or material, that can be read from a machine or other form without however providing a specific definition of databases (Douglas, 1996). As we have done above about WIPO we think that is important to remember that the TRIPS is an organ of the WTO which aims to enforce the intellectual property accords, monitoring the operations included in the accord and by promoting the transparency of the politics of the accord members. Moreover, it can be consulted by members in case of violation of the terms of the treaty. About the European legal reality we can observe that the definition provided in the directive responds to the needs of the community legislator, in setting limits to the field of application of the directive and consequently, the obligations of harmonization imposed on the community members (Band, 1997). The limit imposed by the directive has the job of limiting the special sui generis protection which this grants to the databases. The precise definition is needed in order to define the reason for the protection, but also in order to establish the requisites needed for the protection. On the contrary no innovation has come about concerning the already present protection given by the copyright, not even in the sense of limiting its area of application. From all the elements described above it can be seen that the dispositions included in the decree aren’t in contrast with the details of the TRIPS accord and the WIPO treaty, ‘cause databases that aren’t included in the community law will be protected anyway by the copyright. In particular in this research we analyze European directive ‘cause is more specific and ‘cause a database protected by WIPO Treatment could not be included under directive’s protection but not vice versa. The elements that in particular characterize the legal notions of a database are (Auteri, 2003): 1. collection of independent works, data or other materials: the collection must be viewed in the sense of a reunion and together with the latter a presentation of the selected elements, but always distinct in order to allow recognition individually or in reunion. In order to answer this need/requirement not only will the fixation be necessary but also the contextual reproduction of the elements, an easy task due to the information technology available today. Thus the nature of the elements inserted is apparently relevant, because it isn’t just about words, but also numbers, images and sounds. It may be useful to state the definition of the International Standards Organization: a representation of facts, concepts or instructions in a formalized manner suitable for communication, interpretation or processing by human beings or by automatic means (Dommering, 1991). The works are taken in consideration as the content of a database both when they are destined to provide facts on which they intend to give information and even as real and proper facts. Other materials: these being sounds, images, films, they can have an integrative role with respect to the  information provided or more simply they can be  primary sources of information. 2. individually accessible by electronic or other means.: this requisite is functional based on the accessibility of single units of information, possible as long as they remain distinct and do not mix with other elements which make up the work. The independence is request not only for other elements but also for pieces, work and data. The independence is thus seen as the faculty to find, learn and eventually extract information by electronic or other means. This requisite demands that the information must be presented according to some order or through a system that allows the recovery and individuation of specific information (Di Cocco, 2005). Such a requisite isn’t usually interpreted rigidly, unless there isn’t the need for displaying single infos in a sequence, leaving to other elements, like indices and hypertext links, the job of giving the piece its sense of union (Musso, 1998; Spada, 1997). The elasticity of interpretation of this element leads to the major or minor attribution of the specific sui generis protection. 3. arranged in a systematic or methodical way: this is a requisite that arises with the same concept of filling in, which implies not only research, the choice or the unison of elements, but also a type of presentation of the information collected which allows the user to perceive the whole info and the independence of the data collected. Both, the definition of the database in the directive and the one in the WIPO Copyright Treatment, recognise the author’s creative support in the setting and placement of the material. The placing according to systematic criteria of the data collected is a basic notion of databases, but that doesn’t mean that information has to be always displayed using the original method. The term “Disposition” has in it the conception of coordination, intended as integration of data via a network of connections and the concept of organization, as the manifestation of a sequence, order of data placement. On the one hand in  the analogical databases, the disposition of the material is done using a topographical placement of information helping the user with indices and notes, the other side is the electronic database where disposition is via computer based on technical needs, which do not stick to the user’s needs. On the other hand its important that the disposition of the material reveals only elements that can be perceived and used by the user. The peculiarity of the electronic databases compared to the peculiarities of the analogical ones is that they do not reveal, with the aim of defining the database, as is the result by considering 21 of the EU Database Directive that states, it: is not necessary for those materials to have been physically stored in an organized manner. Article 1 at comma 3 of the directive however excludes that protection given to the databases be extended to computer programs used in the making or operation of databases accessible by electronic means. However the same directive, when considering 20 adds that protection under this Directive may also apply to the materials necessary for the operation or consultation of certain databases such as thesaurus and indexation systems. By excluding software (used for constructing or the functioning of the database) from the protection , the directive excludes that the foreseen requisites for databases can be found in those same programmes. The above is relevant for the attribution of the copyright protection, as the norm under examination seems to exclude from this protection the databanks whose creative character lies only in the disposition of the material thanks to the software used. The community legislator has distinguished between the necessary elements for the functioning and the elements necessary for the consultation of databases declaring that the protection should be extended even to such elements, even though he indicated as example the TESAURO and index systems. The question needs to be solved on a technical level, but in case this isn’t possible an eventual extension of the protection shouldn’t , according to the majority of the doctrine, create particular problems, after all the protection would be extended to these programmes only in the measure in which they are necessary for the functioning of  a specific database (Linn, 2000). 4. accessible by electronic or other means: this requisite is intended in the sense of attributing to any user the faculty of accessing the single pieces of information available in the database, of learning about them and in the final case extracting them. The minority doctrine doesn’t seem to follow this, according to it, its enough if the technician has access to the information. Related to the databases its the same definition given by the norm which needs the availability of software specific for locating and for the picking-up of single pieces of information, but it however seems right to retain that for non digital databases the requisites should be more elastic. The directive under examination recognises as the author of the database the physical or judicial person who creates the piece and gives him/her, in virtue of this classification, the original economic rights over it (Lipton, 2003). All member states haven’t absorbed the directive in its totality, for example the Italian legislator has excluded the chance that a judicial person be considered as author of the database, admitting however that the subject can assume the position and have economic rights as a derived right (Beutler, 1996; Jarach, 1979). We must observe that WIPO Copyright Treatment move from contrary point of view ‘cause don’t distinguish between physical or judicial person. Thus ‘cause WIPO treaty don’t give any moral right to database’s constitutor but only economic right. The moral rights of the piece and the exclusive rights of making economical use are given to the author of the database. Concerning rights of every worker that collaborate to create a database, i.e. content creator, database designers or system developers we have to observe that the European Directive and the WIPO Treatment don’t recognise moral and economic rights to each one of co-worker (Collie, 1994). Indeed we have to remember that database’s legal protection is given only to the creation consider as whole at the same consideration have to be extended to the web page. Anyway co-worker have recognized moral and economic rights, but only for they specific job and as often as not these economic rights is automatically transferred from the co-worker to the owner by employment contract’s regulations (Lai, 1999). In other words on one side we have specific right recognized to each collaborator and on the other side we have general right recognizes to the creation consider as whole. The exclusive rights reserved for the database’s author from article 5 of the  directive 96/9/CE are: a. temporary or permanent reproduction by any means and in any form, in whole or in part, doesn’t detect as per the norm the eventual private use of the copy made, which will be still equally subject to authorisation; b. translation, adaptation, arrangement and any other alteration, translations and individual pieces that are autonomously protected in their economic rights aren’t subject to the database’s author’s authorization; c. any form of distribution to the public of the database or of copies thereof. The first sale in the Community of a copy of the database by the right holder or with his consent shall exhaust the right to control resale of that copy within the Community; d. any communication, display or performance to the public; e. any reproduction, distribution, communication, display or performance to the public of the results of the acts referred to in b. Referring to point c. its important to underline that free delivery of examples for promotional reasons, teaching or scientific research, aren’t to be considered as the exercising of the right of distribution. In the WIPO treaty there isn’t any explicit limitation of the economical right, but the article 10 declares Contracting Parties may, in their national legislation, provide for limitations of or exceptions to the rights granted to authors of literary and artistic works under this Treaty in certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author and later Contracting Parties shall, when applying the Berne Convention, confine any limitations of or exceptions to rights provided for therein to certain special cases that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author. From all the elements described above it can be seen that there isn’t so much difference between European directive and WIPO Copyright Treatment. Distribution is to be understood only as sale or transfer of property that can be done only with alienation or with the passing on of support material, that incorporates the original or its copy. With regard to the “passing on” its important to distinguish between material and immaterial support , as exhaustion of the right of distribution exists only in the first case; it seems correct to believe that the simple placing of a database online for the public doesn’t lead to any type of exhaustion of the right. The right to distribute has two particular exceptions, clearly underlined at the second comma of article 5 of the present directive:: a. in the case of reproduction for private purposes of a non-electronic database; b. where there is use for the sole purpose of illustration for teaching or scientific research, as long as the source is indicated and to the extent justified by the non-commercial purpose to be achieved; c. where there is use for the purposes of public security of for the purposes of an administrative or judicial procedure; d. where other exceptions to copyright which are traditionally authorized under national law are involved, without prejudice to points a., b. and c. A part of the doctrine already held that given the importance of databases as sources of information, and their increasing relevance for some major social and economic activities, it was seen as necessary that the temperament of the exclusive rights via licences foresaw such restrictions in specific cases and with equal conditions for the author and the user (Giannantonio, 1997). The maker of databases is completely another point, the community legislator has provided for the latter a specific point in art. 7, first comma, of the directive; this states: Member States shall provide for a right for the maker of a database which shows that there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents to prevent extraction and/or re-utilization of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database. The community legislator has in the above wanted to protect the investment of the maker, not only from a quantitative view, in other words abased on the money invested, but also based on the qualitative point of view, considering for example the amount of time devoted (Winn, 2000). In this sense the qualification of constructor could be of a Judicial person participating in the entrepreneurial activity, equally of a physical person even if not an entrepreneur; essential requisite in both cases is that the constructor must come from one of the European countries. The protection given to the investments is completely unlinked from that guaranteed by copyright, in fact if the copyright protects the structure of the database, the right of the maker aims at protecting the investments made by the parasite like competition. This difference of ends even in the most minimal duration of this sui generis protection which is reduced to fifteen years form the date of completing of the database. In particular the maker can ban the extraction and the re-use of substantial parts. The article 7 comma 2 alphabet a of the directive defines the extraction as 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. The same article continues to define the concept of re-us as any form of making available to the public all or a substantial part of the contents of a database by the distribution of copies, by renting, by on-line or other forms of transmission. The first sale of a copy of a database within the Community by the rightholder or with his consent shall exhaust the right to control resale of that copy within the Community; Public lending is not an act of extraction or re-utilization. In the definition shown above there are references to the concept of substantial part: the doctrine (Chimenti, 2001) shows that these words have to be interpreted with relation to single events and the problems caused to the legal owner. Besides banning extraction and the re-use of substantial parts of the compilation, the chance of ceding the activity is foreseen , even though a precise contractual form doesn’t exist for it, the community legislator allows free space here for each member. In the judgment C-203/02, BHB Case, November 9 2004, the Court of Justice of CE defined substantial part as contents of [a] database’ refers to the scale of the investment in the obtaining, verification or presentation of the contents of the subject of the act of extraction and/or re-utilisation, regardless of whether that subject represents a quantitatively substantial part of the general contents of the protected database. Any part which does not fulfil the definition of a substantial part, evaluated both quantitatively and qualitatively, falls within the definition of an insubstantial part of the contents of a database (Gledhill, 2001). The Court made clear that the Copyright Clause does not protect a group of facts merely based on the amount of resources one invests in creating the database or compilation (Chalton, 1997). This is consistent with the notion that factual information is something that should be left in the public domain. Proponents of database legislation argue that business models emerging in the information age need sweat of the brow protection. Collections of information, especially those readily accessible via the Internet, related to news, stock market activity, travel, health, Internet usage patterns, and customer lists have become valuable commodities. While companies invest substantial resources in gathering and maintaining such databases, Internet allows the cost of copying and disseminating such information to decrease rapidly. As the amount of free riders increases, incentive to invest resources in such databases will decrease if creators do not reap enough market return, through increased competitors and less licenses or subscriber fees. If what the Court said about database is important to database’s constructor, we think that is more important to web page’s creator, not only for the investment, but also for the moral right that creation of web page should give to the constructor. The protection of Web pages as a databases After having focused on the basic characteristics of databases, its now easier to discover the differences between typical elements of a web page and those of a database. It can be stated without much difficulty that a general similarity between the elements of a single website and those delineated in the definition of databases. The first requisite predicted for database in the directive is the collection of independent works, data or other materials. The meaning of this expression used by the legislator has been clarified above, and thus it isn’t too ring to say that all elements which are generally found in a web page are included fully in the definition given to the content of a database. An analysis of a similar result can be done also for the second requisite of databases: individually accessible by electronic or other means. The independence of single data in a web page is highlighted by various elements; in particular the division of information in single files and their connection using hypertext links denotes the independence and at the same time the interconnection of the elements. It must added that when all elements are in a single file its always possible to distinguish the single elements by making them independent, not only from a technical point of view, but also in content. Indeed elaborator and software, every browser in particular, are able to distinguish the data in every single element, even though they are presented in the same way and the user can, using simple operations, manage to separate the single parts and eventually get the files that the user is interested in. The third requisite for databases imposes that data be arranged in a systematic or methodical way. When comparing a web page with a database we cannot forget what has already been mentioned about this requisite for this type of databases. Infact for this characteristic it must be said that system and method must be felt when the user uses the site, not in the physical disposition of the information which must answer the creator and the software’s needs. It might be useful based on what has been said till now to confirm and remind again what the article 21 of the directive 96/9/CE states whereas it is not necessary for those materials to have been physically stored in an organized manner. The last requisite states that it be accessible by electronic or other means its a characteristic that can be checked by the simple presence of research instruments by the pieces of information available on the site or furnished by browsers used for surfing the web. Thus it seems right to state that all the requisites needed for the definition of databases can be used directly for the web page. About requisites contained in WIPO Copyright Treatment we can observe that only one of them is not explicitly included in directive 96/9/CE and is the requisite for database to by reason of the selection or arrangement of their contents constitute intellectual creations. Any way we think that this requisite we can find in every web page, also if is created on a software’s model, because each page must be different about the content and the elements used. If we find two similar page we can sustain that is a copy or a plagiarized work and in this case the first creator could use this theory to protect what have he done  (Unsworth, 1997). At this point we think could be useful to summarize similarities and differences between web page and database. A web page is composed by different kind of components as text, image, music, film clip, software (i.e. games on line) and each element has a specific legal protection of itself. Those elements are the same components that we can find in a database, in fact databank can contains text, image, music, film clip and software. Going over we can observe that every one can research each web page’s elements and access to them individually, as the European Directive requires for database. Withal we can observe that database’s requisites of  data arranged in a systematic or methodical way and of accessible by electronic or other means are attended in web page’s nature, indeed web page’s prolog requires to respect a specific grammar or, in other words, to use a systematic or methodical way.  At the end we can sustain that database and web page have the same structure and compositions, in fact web page could be consider as a database and database could be consider as a web page. The only difference that we can point out is that paper database doesn’t lose its inner nature, i.e. telephone book, on the contrary paper web page lose web page’s inner nature. At the end of this short summarize we can sustain that in general we can extend database’s legal protection to web page. The directive and the modality with which single member states have accepted the situation, offers a kind of in-elastic protection and it isn’t very adaptable  to new events. In fact the derogations which create a restricted space for free utilisation are not applied to extraction, not even for private use of data from an electronic database. From what has been said, it can be deduced that even where a database is diffused free of charge, no private user could, based on the literal interpretation of the norm, consult it, or even less download files on their hard disks or auxiliary memory units. About the faculty of consulting we have to observe that the ban arises as even for simple consultation of a data on the network its necessary that this be stored in the user’s RAM and cache memory, in fact all this process is part of the idea of extraction. We shouldn’t forget that for the connections, its wrong to talk about hypertext connections as the link  only provides the server’s address where the file can be found, it doesn’t connect the two datas.  In the World Wide Web, as in other hyper textual systems, link is a sign of interconnection from a source to a destination. A link on a text, on a photo or on other multimedia object permit to open another file or page. Interpreted in the way as explained above it will be extremely difficult for the sui generis protection  to be applied to search engines, the access here is generally free and only in rare cases there is a work behind the scenes, work related to the gaining of data, based on connections and other sites (Tyson, 1997). This type of discipline could be applicable for information groupings which are accessed via passwords, but we must consider that in these sites a password is indispensable in order to access the various services. While the ban of re-use can be included in the contract for adhesion, while a rigid application on the network could result as an excessive restriction, potentially it could mine the intrinsic nature of internet (Tai, 2003; Stazi, 2004). In fact if it were attributed to selected information that is diffused with the protection, impeding the reproduction as the info is part of a database, the whole physiognomy of the internet would be radically changed from a virtual area where information is diffused so that it be freely available and usable. What needs to be protected isn’t the generality of information present on internet, but the particular realities that need the investment of time and money and which for their economic relevancy require particular attention. More over we must observe that in the recent past many legal theory have been developed to give a legal protection to software when there were not any treatment (Derclaye, 2000) and the same thing have been done about games and other judicial goods that in the past didn’t have specific protection. Indeed technology’s develop go over faster than every legislator’s work or law’s evolution.  In other words frequently has happened that when something new appear on the world scene and these things have a considerable economic value lawyer begin to think about a legal protection that have to guarantee investments that stay off-stage and, in this way, also the develop of new technology (Cohen, 1991; Colston, 2002). In particular we want underline that this theory try to protect not only the economic investment made by big company but also and above all the time investment of single person or small associations (Crews, 1998). To demonstrate better what we have just said we can remember what is write in WIPO site’s home page: The World Intellectual Property Organization (WIPO) is a specialized agency of the United Nations. It is dedicated to developing a balanced and accessible international intellectual property (IP) system, which rewards creativity, stimulates innovation and contributes to economic development while safeguarding the public interest. For all that has been mentioned up to this point, it seems legitimate to believe that directive 96/9/CE for databases and WIPO Copyright Treatment can be extended to web pages. However it seems right that inside this theory there be a distinction between web page with restricted access, for which a protection seems necessary and rightful, from web pages to free access, for which a protection seems necessary and rightful (Mansani, 1996) for the one that has to do with copyright and for the web page considered a whole. In fact if the web page with restricted access needs protection not only from the point of view of copyright but also about the investment that has done, web page to free access needs only a copyright protection. Future Trends Future trends seems to follow our theory and infact we want bring to your attention what the University of Leicester’s web site tell about protection of itself: The University of Leicester World Wide Web site, as a database, is eligible for protection under copyright and Database Right. These rights are owned by the University of Leicester. In simple language the University of Leicester agrees with our thesis and for the first time pay attention to the copyright of a web page. Analyzing over what the University of Leicester’s web site tell about protection of itself we found that University attributes to himself every moral and economic rights not only related to the content of each page but also related to all original content (including text, code, page design, graphics and sound)[…]. University of Leicester link the protection of his web site to the Copyright and Rights in Database Regulations 1997, the UK law that has acknowledged the European directive 96/9/CE. This link permit to the writer to sustain all the more so what said above. The state of thing we didn’t find any theory against the our thesis and we think that in future the doctrine and the jurisprudence will follow this road considering in particular that a lot of web site are starting to adopting the same policy of University of Leicester’s web site. CONCLUSION From what has been said, it can be deduced that even where a database is diffused free of charge, no private user could, based on the literal interpretation of the norm, consult it, or even less download files on their hard disks or auxiliary memory units (Mulholland, 2005). We shouldn’t forget that for the connections, its wrong to talk about hypertext connections as the link only provides the server’s address where the file can be found, it doesn’t connect the two data. Interpreted in the way as explained above it will be extremely difficult for the sui generis protection to be applied to search engines, the access here is generally free and only in rare cases there is a work behind the scenes, work related to the gaining of data, based on connections and other sites. This type of discipline could be applicable for information groupings which are accessed via passwords, while a rigid application on the network could result as an excessive restriction, potentially it could mine the intrinsic nature of internet. In fact if it were attributed to selected information that is diffused with the protection, impeding the reproduction as the info is part of a database, the whole physiognomy of the internet would be radically changed from a virtual area where information is diffused so that it be freely available and usable. What needs to be protected isn’t the generality of information present on internet, but the particular realities that need the investment of time and money and which for their economic relevancy require particular attention. Waiting for an ad-hoc protection that will contemplate all specifics that could arise regarding the web sites this interpretative solution could be taken up and used not only by big company to protect their web site but also by each private constitutor that spend a lot of time to create their private web site. We think that this thesis don’t damage internet’s philosophy of free information and free circulation of them (Correa, 2002) but that permit to every web page’s creator to have a recognition of his work and moral and economic rights related to it. REFERENCES – Auteri, P. (2003), Attuazione della direttiva 96/9/CE relativa alla tutela giuridica delle banche dati – [Artt. 1, 2], Le nuove leggi civili commentate, , 4-5, pp. 1175-1230. – Askanazi, J., & Caplan, G., & Descoteaux, D., & Donohue, K., & Glasser, D., & Johnson, A., & Mena, E. (2002), The future of database protection in U.S. Copyright Law, retrived November 27, 2006 from – Autelitano,  F. (1999), Banche dati. 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