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European Commission begins review into EU database laws

A review into an EU law that provides protection to creators of databases has been opened by the European Commission.24 May 2017

The Commission said the review will look at whether the EU's Database Directive "still fulfils its policy goals of providing protection of databases, including those not protected under copyright, while taking into account users' legitimate interests".

It will also look at whether the Directive is "still adapted in view of the development of new technologies, new business models based on data exploitation, and other emerging data-related issues, policies and legal frameworks on data access and ownership", according to the Commission's review roadmap.

The review will focus particularly on the sui generis database rights provided for under the Directive, the Commission said, and is due to be completed in the first three months of 2018. The Commission has opened a four week feedback period for stakeholders to provide their views on its review roadmap. A public consultation will be held later this year that addresses the substance of the review, it said.

The Database Directive was established as a way of harmonising the law protecting databases so as to encourage the development of database-dependent businesses in the digital age by creating a 'sui generis' database right that can protect certain sets of data that cannot qualify for copyright protection.

Copyright law alone cannot offer protection to database creators where the database contains facts, as facts in and of themselves are not necessarily capable of being copyrighted. For example, there is no copyright in the address data recorded in a telephone directory but because a substantial investment goes into creating a directory that directory will be protected by database rights.

The Directive does not provide for database rights protection to apply to every aggregation of data. Only if database creators have invested sufficient time, money and skill into developing their database will those creations be protected by database rights. Databases that arise as a by-product of doing business do not attract database right protection.

The Commission said its review would look at how the provisions on database rights and copyright protection of databases, provided for in the Directive, have been used and whether they have been "deemed relevant, efficient and effective". Whether the database rights provisions are "fit for purpose in an increasingly data-driven economy" will also be assessed, it said.

The review will also look at whether the Directive has helped protect investment in the creation of database, and whether it has provided for a balance between "the protection of databases makers and the legitimate interests of lawful users", among other things, the Commission said.

In its roadmap paper, the Commission said the results of its evaluation of the Database Directive will be relevant to its plans to build "a European data economy", which it outlined in January this year.

According to the options for reform contained in the Commission's January paper, a new licensing regime for anonymised "machine-generated data" could be introduced. New guidelines to incentivise businesses to share the non-personal data they have, and granting public bodies special rights of access to data where this is in the "general interest" are other options under consideration too. The Commission also said new default contracts rules could facilitate access to data in accordance with benchmarks that account for the different bargaining positions that businesses in the market have, and that a new "data producer's right" could also be introduced.

The Commission said: "In order to help building a European data economy, the Commission intends to address the barriers to the free movement of data inside the EU and explore a possible future EU framework for data access (questions of ownership of non-personal or anonymised data, access and transfer of such data). The evaluation of the Database Directive will be relevant in that respect as it will assess these issues, from a database protection perspective."

The review of the Database Directive, and the Commission's plans to build a European data economy, stem from its 2015 digital single market strategy.

Intellectual property law expert Iain Connor of Pinsent Masons, the law firm behind Out-Law.com, previously said that the existence of database rights does not hold back EU businesses from developing innovative new uses for data.