Requirements for the sui generis Legal Protection of Databases
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Abstract
Databases are very important items but it is not complicated to reproduce them. Thus appropriate legal protection should be given to databases. Case law in Europe and in the USA revealed that copyright protection of databases is not sufficient, because many databases do not meet originality requirement and are not protected by copyright. This was the reason why Directive 96/9 of the European Parliament and of the Council on the legal protection of databases has introduced a new sui generis right to protect the makers of databases.
According to Article 7 of the Directive in order to get sui generis rights the maker of a database must show that there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents. Case law and theory interprets qualitatively investment as intellectual efforts and quantitatively investment as expenditures of money, time, effort and energy. Requirement that investment should be substantial is more complicated.
Some commentators hold that the level of investment may be low, others considers it should be high. The most puzzled is the last requirement that investment must be made in either the obtaining, verification or presentation of the contents of the database. The 'spin-off doctrine' which originated in Netherlands holds that databases which are by-products of other activities are excluded from protection. But this theory was not universally accepted.
The courts of four Member States (the United Kingdom, Greece, Sweden and Finland) have been confronted with the question of the application of the spin-off theory and have decided to stay proceedings and ask preliminary rulings to the European Court of Justice. ECJ confirmed attitude that the expression ‘investment in the obtaining of the contents’ of a database must be understood to refer to the resources used to seek out existing independent materials and collect them in the database, and not to the resources used for the creation as such of independent materials. On the other hand, the fact that the creation of a database is linked to the exercise of a principal activity in which the person creating the database is also the creator of the materials contained in the database does not, as such, preclude that person from claiming the protection of the sui generis right, provided that he establishes that the obtaining of those materials, their verification or their presentation required substantial investment in quantitative or qualitative terms, which was independent of the resources used to create those materials.
Also ECJ confirmed that the quantitative assessment refers to quantifiable resources (money, time, etc.) and the qualitative assessment to efforts which cannot be quantified, such as intellectual effort or energy.
But the Court does not give its interpretation of what the level of the substantial investment should be. This remains the question which should be answered by national courts.
According to Article 7 of the Directive in order to get sui generis rights the maker of a database must show that there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents. Case law and theory interprets qualitatively investment as intellectual efforts and quantitatively investment as expenditures of money, time, effort and energy. Requirement that investment should be substantial is more complicated.
Some commentators hold that the level of investment may be low, others considers it should be high. The most puzzled is the last requirement that investment must be made in either the obtaining, verification or presentation of the contents of the database. The 'spin-off doctrine' which originated in Netherlands holds that databases which are by-products of other activities are excluded from protection. But this theory was not universally accepted.
The courts of four Member States (the United Kingdom, Greece, Sweden and Finland) have been confronted with the question of the application of the spin-off theory and have decided to stay proceedings and ask preliminary rulings to the European Court of Justice. ECJ confirmed attitude that the expression ‘investment in the obtaining of the contents’ of a database must be understood to refer to the resources used to seek out existing independent materials and collect them in the database, and not to the resources used for the creation as such of independent materials. On the other hand, the fact that the creation of a database is linked to the exercise of a principal activity in which the person creating the database is also the creator of the materials contained in the database does not, as such, preclude that person from claiming the protection of the sui generis right, provided that he establishes that the obtaining of those materials, their verification or their presentation required substantial investment in quantitative or qualitative terms, which was independent of the resources used to create those materials.
Also ECJ confirmed that the quantitative assessment refers to quantifiable resources (money, time, etc.) and the qualitative assessment to efforts which cannot be quantified, such as intellectual effort or energy.
But the Court does not give its interpretation of what the level of the substantial investment should be. This remains the question which should be answered by national courts.
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Please see Copyright and Licence Agreement for further details.
