Database Directive

The Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases is a directive of the European Union in the field of copyright law, made under the internal market provisions of the Treaty of Rome. It harmonises the treatment of databases under copyright law and the sui generis right for the creators of databases which do not qualify for copyright.

Directive 96/9/EC
European Union directive
TitleDirective on the legal protection of databases
Made byEuropean Parliament & Council
Made underArts. 47(2), 55 & 95
Journal referenceL77, 1996-03-27, pp. 20–28
History
Date made11 March 1996
Came into force27 March 1996
Implementation date1 January 1998
Preparative texts
Commission proposalC156, 1992-06-23, p. 4
C308, 1993-11-15, p. 1
EESC opinionC19, 1993-01-25, p. 3
EP opinionC194, 1993-07-19, p. 144
Current legislation

As of 2022 the directive is being reviewed as part of a proposed Data Act. Public submissions closed on 25 June 2021,[1] and a proposal for new harmonised rules on data was published on 23 February 2022.[2]

Definition of database

Article 1(2) defines a 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". Non-electronic databases are also covered (para. 14 of the preamble). Any computer program used to create the database is not included (para. 23 of the preamble). Copyright protection of software is governed by Directive 91/250/EEC.

Under Article 3, databases which, "by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation" are protected by copyright as collections: no other criterion may be used by Member States. This follows from the 1994 Agreement on the Trade-Related Aspects of Intellectual Property Rights (TRIPS), a widely adopted treaty to which all World Trade Organization members are party. TRIPS clarifies and arguably relaxes the criterion for protection of collections in the Berne Convention for the Protection of Literary and Artistic Works, which covers "collections of literary and artistic works" and requires creativity in the "selection and arrangement" of the contents: in practice the difference is likely to be slight. Any copyright in the database is separate from and without prejudice to the copyright in the entries.

The acts restricted by copyright are similar to those for other types of work (Art. 5):

  • temporary or permanent reproduction by any means and in any form, in whole or in part;
  • translation, adaptation, arrangement and any other alteration;
  • any form of distribution to the public of the database or of copies thereof, subject to the exhaustion of rights;
  • any communication, display or performance to the public;
  • any reproduction, distribution, communication, display or performance to the public of a translation, adaptation, etc.

This shall not prevent the lawful use of the database by a lawful user [Art. 6(1)]: Member States may provide for any or all of the following limitations [Art. 6(2)], as well as applying any traditional limitations to copyright:

  • reproduction for private purposes of a non-electronic database;
  • 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;
  • use for the purposes of public security or for the purposes of an administrative or judicial procedure.

Copyright protection usually lasts for seventy years after the death of the last publicly identified author. Anonymous or pseudonymous works gain protection for the later of 70 years after the work is lawfully made available to the public or 70 years from creation. If national legislation makes particular provision for collective works or for a legal person (i.e. a body corporate) to be a rights holder the term of protection of calculated in the same way as for anonymous or pseudonymous works, with the exception that if any natural persons who created the work are given credit in versions made available to the public, the term of protection is calculated according to the lives of those authors. Art. 1, Directive 93/98/EEC).

Notable litigation
See also: EU copyright case law

British Horseracing Board

The British Horseracing Board (BHB) was the claimant in a notable case (C-203/02). At dispute was the re‑use of the contents of their horseracing information subscription service by other parties. The European Court of Justice (ECJ) ruled in 2004 that the resources used for the creation of materials which make up the contents of a database are not protected and BHB duly lost their litigation.[3][4]

Apis-Hristovich EOOD v Lakorda AD

A preliminary court ruling (Case C-545/07) issued in 2009 in response to a Bulgarian court referral from the Sofiyski gradski sad (Sofia City Court).[5] Apis and Lakorda both operated legal information databases. Lakorda had been set up by former Apis employees and Apis alleged that Lakorda had extracted data from two law information modules within its database.[6] The ruling looked at the meaning of the terms "extraction", "permanent transfer" and "temporary transfer" in relation to data, and also established that any module within a database which could be defined as a database under the Directive should be treated as a database in itself.[7]

CV-Online Latvia

An ECJ ruling (ECLI:EU:C:2021:434) in June 2021 markedly raised the threshold for infringement to occur: a claimant now needs to establish that an alleged "substantial extraction" also caused "significant detriment" to its investment in that database. The case itself (C‑762/19) concerned two Latvian companies providing job seeking services: CV‑Online Latvia and Melons.[8][9][10][11] Husovec and Derclaye opine that the ECJ now "requires that all acts of extraction and re-utilization must lead to a risk that the database maker is not able to recoup its initial investment because of these actions [and that] while considering the risk, the national courts must balance the interests of other parties as part of the infringement test".[9]

See also

Notes
  1. ^ Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs, OJ L 122, 17 May 1991, p. 9.
  2. ^ Berne Convention for the Protection of Literary and Artistic Works Archived 11 September 2012 at the Wayback Machine
  3. ^ Council Directive 93/98/EEC of 29 October 1993 harmonizing the term of protection of copyright and certain related rights, OJ L 290, 24 November 1993, p. 9.

References
  1. European Commission (28 May 2021). Inception impact assessment: Data Act (including the review of the Directive 96/9/EC on the legal protection of databases) — Ares(2021)3527151 (PDF). Brussels, Belgium: European Commission. Retrieved 7 June 2021. Lead DG: CNECT/G1. Landing page for download given. Download name: 090166e5ddb6bc31.pdf.
  2. European Commission, Proposal for a Regulation of the European Parliament and of the Council on harmonised rules on fair access to and use of data (Data Act), COM(2022) 68 final, published 23 February 2022, accessed 3 July 2022
  3. European Court of Justice (9 November 2004). Judgment of the Court (Grand Chamber) of 9 November 2004 — Case C-203/02 — ECLI:EU:C:2004:695. Kirchberg, Luxembourg: European Court of Justice (ECJ). Retrieved 19 March 2021.
  4. "The British Horseracing Board Ltd and Others v William Hill Organization Ltd: ECJ 9 Nov 2004". swarb.co.uk. West Yorkshire, United Kingdom. 7 July 2018. Retrieved 19 March 2021.
  5. Sofia City Court, accessed 3 July 2022
  6. Society for Computers and Law (SCL), Database Right: ECJ Ruling on Extraction, published 10 March 2009, accessed 3 July 2022
  7. IP-PorTal, European Court of Justice, 5 March 2009, Apis v Lakorda, accessed 3 July 2022
  8. CJEU (3 June 2021). Judgment of the Court on 'CV-Online Latvia' SIA v 'Melons' SIA — Case C‑762/19 — ECLI:EU:C:2021:434. Luxembourg City, Luxembourg: Court of Justice of the European Union (CJEU). Retrieved 18 March 2022. 6 pages.
  9. Husovec, Martin; Derclaye, Estelle (17 June 2021). "Access to information and competition concerns enter the sui generis right's infringement test – The CJEU redefines the database right". Kluwer Copyright Blog. Retrieved 18 March 2022.
  10. Synodinou, Tatiana (22 February 2021). "Search engines and databases in the search for a balance: the AG'S opinion in the 'CV-Online Latvia' case". Kluwer Copyright Blog. Retrieved 18 March 2022.
  11. Hamilton, Chloe (5 July 2021). "CJEU ruling narrows the scope of EU database rights". Mishcon de Reya LLP. London, United Kingdom. Retrieved 17 March 2022.
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