Legal Protection of Databases Directive

The European Directive on the legal protection of databases was adopted in February 1996.

The Legal Protection of Databases Directive Directive created a new exclusive “sui generis” right for database producers, valid for 15 years, to protect their investment of time, money and effort, irrespective of whether the database is in itself innovative (“non-original” databases).

The Directive harmonised also copyright law applicable to the structure and arrangement of the contents of databases (“original” databases).

The Directive’s provisions apply to both analogue and digital databases.


Background


Legal Certainty, digital single market, database, legal protection of databases

The Directive sought to create a legal framework that would establish the ground rules for the protection of a wide variety of databases in the information age. It did so by giving a high level of copyright protection to “original” databases and a new form of “sui generis” protection to those databases which were not “original” in the sense of the author’s own intellectual creation (“non-original” databases).

As a result of harmonisation, the United Kingdom and Ireland, which applied a lower threshold of “originality” (so-called “sweat of the brow” copyright), were required to “lift the bar”. In exchange, and in order to compensate for the loss of the “sweat of the brow” protection, the “sui generis” form of protection was introduced as an entirely novel form of intellectual property.


Evaluation of the Directive (2005)


The vague terms used in the Directive to define the “sui generis” right have caused considerable legal uncertainty. Also the scope of the “sui generis” right was severely curtailed in a series of judgments rendered by the European Court of Justice (“ECJ”) in November 2004.

An evaluation of the Directive took place in 2005. The evaluation was conducted on the basis of a 2005 online survey addressed to the European database industry and of the Gale Directory of Databases (the “GDD”), which is the largest existing database directory.

The evaluation found that the economic impact of the “sui generis” right on database production is unproven. The GDD shows that EU database production in 2004 fell to pre-Directive levels: the number of EU-based database “entries” into the GDD was 3,095 in 2004, compared to 3,092 entries in 1998 and 4,085 entries in 2001.

While the empirical evidence, at this stage, cast doubts on the usefulness of the new right, the European publishing industry argued that “sui generis” protection was crucial to the continued success of their activities.


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