The Directive was passed in 1996 with the intention of
protecting the investment involved in making a database. While
copyright law protects databases if they are sufficiently creative
and original, there are many other databases – especially
compilations of information or commonplace data, such as telephone
directories, music charts or football match listings – that are not
covered by copyright law.
The Directive created a new form of protection known as the
sui generis database right, a specific property right for
databases that is unrelated to other forms of protection such as
copyright.
But Monday's report on the legislation, now implemented across
Europe, highlights the flaws.
The Directive was intended to stimulate the growth of databases
in Europe. Perhaps, with good legal protection, businesses would
invest more in building databases for licensing to others. But
there is no evidence of growth. The Commission
points out that the number of databases appearing in the Gale
Directory of Databases for 2004 was 3,095 – just three
databases more than the total listed shortly before the Directive
came into force.
These figures do not necessarily reflect on the merits or
demerits of the Directive; nevertheless, Europe's publishing and
database industries seem to claim that sui generis
protection is crucial to the continued success of their
activities.
In a survey of stakeholders, 75% of respondents told the
Commission that they were aware of the existence of the sui
generis right. Of these, 80% feel "protected" or "well
protected" by the right. Sixty-five percent said the legal
protection of databases is higher than it was before
harmonisation.
The survey was addressed to 500 European companies and
organisations involved in the database industry (publishers,
suppliers of data and information, database manufacturers,
distributors, etc.) and 101 replies were received.
The Commission is fully aware of problems with the sui
generis right: apart from the failure to produce any
measurable impact on database production, the scope of the
right is unclear. Also, granting protection to
"non-original" databases is perceived as locking up information,
especially information in the public domain.
The sui generis right is expressed in the Directive as
follows:
"Member States shall provide for a right for
the maker of a database which shows that there has been
qualitatively and/or quantitatively a substantial investment in
either the obtaining, verification or presentation of the contents
to prevent extraction and/or re-utilisation of the whole or of a
substantial part, evaluated qualitatively and/or quantitatively, of
the contents of that database."
The Commission's report points out that none of these terms has
a precise legal meaning. Compounding the confusion over the
definition was a set of decisions by the European Court of Justice
in November 2004, among them a ruling on bookmaker William Hill's
reuse of a database belonging to the British Horseracing Board.
These landmark rulings introduced a distinction between
creation of data and obtaining
it. The European Court refused to count any investment before or at
the time of creating data as constituting a
substantial investment in the database itself.
The British Horseracing Board decision surprised many. The Board
drew up extensive lists of runners and riders; but the European
Court said that the resources used to draw up such a list did
not constitute investment in the obtaining and
verification of the contents of the database in which that list
appears. The sui generis right protects only the
obtaining of the data for the database – not the creation of the
data.
So publishers of directories, listings or maps are still
protected today – but only if they obtain the data from others,
rather than create the data themselves.
The ruling ruined the British Horseracing Board's plans to
license its database – a revenue stream that it valued at £100
million a year. Football's governing bodies are also expected to
lose substantial revenue by not being able to charge for
information contained in football fixtures lists.
Notwithstanding, 43% of those responding to the Commission's
survey said they believe that the legal protection of their
databases will be the same as before the European Court rulings –
or even reinforced. Only 36% perceived the scope of protection
being weakened or removed – although 54% believe that fewer
databases will be protected by the sui generis right.
Monday's report from the Commission suggests that, following
last November rulings, database makers will devise legal strategies
to get around the distinction drawn and that this might result in
online databases increasingly being secured by systems of
access control.
But the Commission report is inconclusive. The institution does
not form a view on what exactly is wrong with the Directive or what
should be done about it. Instead it presents four options and
invites comments.
The first option is to repeal the whole
Directive and allow Member States to revert to their
former legal positions. The Commission warns that Member States
could then protect "original" databases under diverging levels of
"originality". So the UK would revert to its "sweat of the brow"
copyright test (whereby copyright was a reward for the hard work
that went into compiling facts); while Scandinavian countries would
revert to a "catalogue rule" (protecting a catalogue or table in
which a large number of information items have been compiled).
Option two is to withdraw the sui generis
right in isolation but keep the harmonised level of
copyright protection for "original" database. The UK and Ireland
would revert to the sweat of the brow test to protect
"non-original" compilations; others would keep their threshold of
"originality," to protect "original" databases under copyright law
and to use, for example, the law of misappropriation to protect
"non-original" compilations. In practice, the approach of the UK
and Ireland protected more databases than the approach of
neighbouring countries before the Directive came into effect.
Option three is to amend the sui generis
right, to clarify the scope of protection; option four is
to maintain the status quo.
The Commission will form a policy on the future of database
protection in the EU; but first it is seeking comments from
interested parties, by 12th March
2006.
"Databases are an important part of Europe's economy in the
information age,” said Internal Market and Services Commissioner
Charlie McCreevy on Monday. “I want to make sure that EU rules
encourage the development of this sector. This evaluation helps
ensure that we are on the right track. I now call on the industry
and other stakeholders to comment and tell us more about how EU
database rules affect them."
