Database Directive

The Database Directive has harmonized the legal protection of databases and created two- tier protection regime for electronic and non-electronic databases. The issue of covering database by copyright protection has been contentious because of the difference in the subject matter290_{. Therefore the Directive has created an exclusive, “sui generis” right for}

database,291 _{which means that “it is not a copyright and does not as such fit into any other}

general category of intellectual property right”292_{. This sui generis right has generated legal}

uncertainty, so that the European Commission has even considered withdrawing the whole Directive or at least the sui generis right293_{. Despite of these controversies, it has been}

commonly acknowledged that, considering the European copyright law, in general, “the most significant harmonization to date has occurred in relation to databases”294_{. The level of}

harmonization reached through this Directive still remains to be exemplary comparing to the other areas of European copyright legislation.

The definition of the general notion of ‘database’ has been the core of this Directive, since the Computer Program Directive, for example, does not provide such definition295_{. The}

Directive defines 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”.296 _{The evaluations of this definition have been as controversial, as the assessments of}

the Directive itself. It has been characterized as “extremely broad”,297 _{which “goes much}

290 _{Seville, p. 41.}

291_{http://ec.europa.eu/internal_market/copyright/prot-databases/index_en.htm} 292 _{Hugenholtz, in: Dreier/Hugenholtz, Concise Copyright, p. 327.}

293 _{Leistner, in: Derclaye, Research Handbook, p.429.} 294 _{Aplin, in: Derclaye, Research Handbook, p.75.} 295 _{See p. 47.}

296 _{Art. 1.2, Directive 96/9EC.} 297 _{Seville, p. 42.}

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further than it what is meant by that word in common parlance”298_{. In terms of}

implementation in the non-member states the broad and flexible character of this definition is even more appropriate. The Directive uses the term ‘’collection” similarly to Berne Convention299 _{and refers to the independent works, data or other materials. The requirement}

of independence of materials has been introduced in order to avoid undesired interpretations.300 _{Moreover, these independent elements should be individually}

retriveable301 _{and arranged in a systematic or methodical way, which draws a line between}

database and a non-systematic, unstructured accumulation of data302_{. Paragraph 3 of the first}

Article draws the line between the computer programs and database, stating that the computer programs, even if they have been used in the making or operation of databases, still do not belong to the scope of protection of the Directive. Implementation of this definition of database has a crucial importance in terms of implementing the whole Directive. Article 2 leaves intact the acquis created before its imposition, namely the provisions related to computer programs, term of protection, rental and lending rights. Such legal technique of leaving the existed acquis intact and declaring “without prejudice” the earlier Directives has been criticized, as it “inevitably leads to inconsistencies”303_{. In chapter II of the Directive the}

element of “the author’s own intellectual creation” is considered to be the criterion according to which the copyright protection is granted to databases. This condition has already been introduced by the Computer Programs Directive304 _{and the Term Directive}305_{, so the}

Database Directive chooses the same criteria in order to “be consistent and avoid any reproach of working piecemeal”306_{. Same refers to the Article 4, which defines author as the}

298 _{Tritton, p. 356.}

299 _{Art. 2.5, Berne Convention,}

300 _{Lewinski, in: Walter/Lewinski, European Copyright Law, p. 694.} 301 _{Hugenholtz, in: Dreier/Hugenholtz Concise Copyright, p. 316.} 302 _{Lewinski, in: Walter/Lewinski, European Copyright Law, p. 695.} 303 _{Hugenholtz, in: Eechoud, p. 301.}

304 _{Art. 1.3, Directive 92/100/EEC.} 305 _{Art. 6, Directive 93/98/EEC.}

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natural person or group of natural persons, regulates the issue of the collective works, refers to the database created by a group of natural persons jointly and is in accordance with the relevant provision of the Computer Programs Directive307_{. Such coherent approach makes}

the implementation of the whole European copyright law aqcuis much easier, as the provisions of the different Directives are already consolidated with each other.

Article 5 defines the acts which are carried out or authorized exclusively by the author of a database and this includes: temporary or permanent reproduction understood in a broad way (“by any means and in any forms”308_{); translation, adaptation, arrangement and any other}

alteration; any form of distribution to the public, whereas the first sale of a copy of the database in the Community exhaust the right to control resale of that copy within the Community (this provision is too ‘EU-specific’ to be implemented by the non-member states) and any communication, display or performance to the public. Article 6 lists the exceptions to database copyright and it gives the national legislators broad discretion to provide for exceptions to the economic rights309 _{granted by Article 5 mentioned above. The Directive}

refers to the ‘lawful user’, which is authorized to use part of the database and which is similar (but not identical) to the lawful acquirer referred by the Computer Programs Directive310_.

The imposition of the exceptions listed by the article is optional and is not a subject of mandatory implementation. These exceptions are the cases of reproduction for private purposes; teaching or scientific research; public security, administrative or judicial procedures and traditional exceptions which are authorized under national law.

Chapter III is dedicated to the sui generis database right established by the Directive, which protects the investment of the database producer, that is, “the human, technical and financial resources invested in the contents of the database”311_{. Maker of the Database, which is “the}

307 _{Art. 2.1, Directive 92/100/EEC.} 308 _{Art. 5.a, Directive 96/9EC.}

309 _{Hugenholtz, in: Dreier/Hugenholtz, Concise Copyright, p. 325.} 310 _{Art. 5,1, Directive 92/100/EEC.}

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person who takes the initiative and the risk of investing”,312 _{enjoys the right to prevent}

extraction and/or re-utilization of his/her database. Both of these uses are defined in the Directive. “Extraction” refers to “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”313 _while

“re-utilization” means any form of making it available to the public “by renting, by online or other forms of transmission”314_{. These definitions are quite broad and flexible for the}

implementation in the legislations of the non-member states.

Article 8 guarantees lawful users of a database certain user rights that might not be overridden by contract, whereas any end user, who is contractually authorized to use the database, is considered as lawful user.315 _{Article 9 allows the limited exceptions to the sui}

generis right and comprehensively regulates the permitted exceptions, meaning that the member states do not need to provide for any exceptions, but if they do so, they must not go beyond those permitted in Article 9.316 _{However, this rule refers only to the member states,}

which means that non-member states have a broad discretion concerning the implementation of these provisions. Article 11 determines the term of protection by the sui generis right, which is 15 years from the date of completion, or, if the database is made available to the public before the expiry of that period, then 15 years from this first making available to the public. This term of protection will be prolonged after each and every additional substantial change to the contents of the database.317 _{Article 11 defines the}

beneficiaries of protection under the sui generis right, which are EU nationals or residents and the companies established in the EU. As we can see, this norm is strictly ‘EU-specific’ and its implementation in the non-member states would not be relevant, since it is oriented directly to the EU space.

312 _{Recital 41, Directive 96/9EC.} 313 _{Art. 7.2.a, Directive 96/9EC.} 314 _{Art. 7.2.b, Directive 96/9EC.}

315 _{Hugenholtz, in: Dreier/Hugenholtz, Concise Copyright, p. 332.} 316 _{Lewinski, in: Walter/Lewinski, European Copyright Law, p. 772.} 317 _{Art. 10.3, Directive 96/9EC.}

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The rest of the norms of Database Directive are common provisions. Namely, Article 12 requires member states to provide appropriate remedies in respect of infringements of the rights provided for in this Directive. The non-member states are surely free to implement this norm in their national legislations as well. However, in most of the cases the situations in these countries significantly differ from the level of the database protection in the EU. On the other hand, the Database Directive generally includes a number of useful and flexible definitions, both in recitals and in the provisions of the articles, the implementation of which would be appropriate and useful for the legislations of the non-member states. This Directive has created a certain standard in European copyright law and harmonization with this standard would be recommended especially for those countries which are aspiring towards the European integration.