Directive 96/9/EC of the European Parliament and the Council (Database Directive)

This piece of legislation offers a protection to databases throughout two main categories: the copyright scheme and the sui generis rights. The definition of database provided by the directive applies to both these two forms of protection: “a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means” (art. 1.2).

The copyright protection refers to the exclusive rights (e.g. reproduction, alteration, distribution, etc.) of the author of a database which, by reason of the selection or arrangement of its contents, constitutes his own intellectual creation. However, the copyright protection does not cover the contents of databases but only the selection and arrangement (i.e. the structure) of those made by the author: the copyright of the database is separated from and without prejudice to the copyright of its contents. The exclusive rights guaranteed to the database creators may be limited by the Member States in some cases provided by the directive (e.g. use for the purposes of public security, administrative or judicial procedures, etc.).

The Database Directive guarantees another form of protection for – the so-called sui generis rights – for the contents, if there has been a substantial investment (i.e. financial resources, time, energy, effort), qualitatively and/or quantitatively, in the obtaining, verification or presentation of the database contents. Sui generis rights enable the database maker to prevent the extraction and/or re-utilization of the entirety or substantial parts, evaluated qualitatively and/or quantitatively, of the database contents by any third parties: this provision aims at the economic protection of the investment of the database maker. However, the sui generis rights apply without prejudice of other existing rights, especially those of the creators of works incorporated in the contents of a database. The term of protection for sui generis rights is 15 years, subject to renewal if a new substantial investment, bringing a substantial change to the database contents, takes place. Also in this case, Member States may limit the sui generis rights in some cases provided by the directive.

In 2005, the European Commission published an evaluation report of the Database Directive, acknowledging that the sui generis rights are difficult to understand and their economic impact on database production remains unproven.

Evaluation

The European Commission has published an evaluation of the protection EU law gives to databases. EU law protects databases by copyright if they are sufficiently creative. Other databases, especially those that are compilations of information or commonplace data, such as telephone directories, music charts or football match listings, may benefit from a new form of protection introduced by the 1996 Database Directive. This protection is known as the 'sui generis' database right, i.e. a specific property right for databases that is unrelated to other forms of protection such as copyright. The evaluation focuses on whether the introduction of this right led to an increase in the European database industry's rate of growth and in database production. It also looks at whether the scope of the right targets those areas where Europe needs to encourage innovation. Stakeholders were invited to comment on the evaluation by 12 March 2006.

Policy Options

Repeal the whole Directive
Withdraw the “sui generis” right
Amend the “sui generis” provisions
Maintaining the status quo

'The scope and purpose of this evaluation

The purpose of this evaluation is to assess whether the policy goals of Directive 96/9/EC on the legal protection of databases have been achieved and, in particular, whether the creation of a special “sui generis" right has had adverse effects on competition. This is the first time that the Directive is subject to an evaluation.

Coverage

Two database cheers for the EU James Boyle writes in the FT about the EU empirical evaluation of whether the Database Directive, which gave intellectual property rights over the creation of database, is actually helping stimulate the industry.

Using a methodology similar to the one I described in an earlier column on the subject, the Commission found that “The economic impact of the “sui generis” right on database production is unproven. Introduced to stimulate the production of databases in Europe, the new instrument has had no proven impact on the production of databases.”

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