This paper attempts to show that databases, as a category of informational goods, suffer from what I term ‘copyright failures’. The efficient remedy to these copyright failures is a liability rule. Property rule is socially inefficient for various reasons, and no protection leads us back to the classical problem of provision of public goods. With this in mind, a hypothesis is formulated based on Richard A. Posner’s efficient common law hypothesis. Our hypothesis is that judges will tend to make liability rule decisions as it is socially efficient. This hypothesis is tested against court decisions on tables and compilations disputes from the earliest times to 1997 when a new database regime supersedes thereafter. Initial investigation shows that our hypothesis is rejected, and that in most cases, judges choose property rule over liability rule. The possible reasons for this anomaly are explored.
