Database protection

Specificity of protection

Databases are intellectual assets which are strongly connected to the
digital environment. The originality criterion for databases is
appreciated in the same way as for computer programs. According to
article of the Database Directive databases are protected if by reason
of the selection or arrangement of their contents constitute the
author’s own intellectual creation (see “software” below). This is not a
very high threshold to pass. However, copyright protection shouldn’t be
granted if the way the database is structured or the selection of the
contents is the usual or standard way of classification or selection for
this type of databases.

For example, in a personal phonebook in which the
phone numbers are classified by alphabetic order, there won’t probably
be any copyright protection because of the lack of originality. On the
contrary, a personal phonebook in which the phone numbers are organised
by the feelings of the person towards the people mentioned in the
phonebook could be original.
Another example : in the library catalogue of the Faculty of Law of
Thessaloniki, if the books are classified by the name of their author or
by their subject-matter e .g. civil law, international law etc., there
is probably no originality in the arrangement of the contents of the
catalogue.

For the protection of databases which are used by libraries or
created by libraries and the possibility of protection of a digital
library as database see my article (in Greek): Databases and libraries,
Βάσεις
δεδομένων και Βιβλιοθήκες

The European Directive

The Directive 96/9/EC on the legal protection of databases creates a
common framework of protection for databases in all member states. A
regime of dual protection is established for different parts of the
database. Original selection or arrangement of the contents is protected
by copyright law. A new kind of independent protection, the database sui
generis right protection, is awarded to the contents of the database if
some special conditions are met. The main elements of this two tier
regime of protection are the following :

  • The definition of the database is very broad : A database is “a
    collection of independent works, data or other materials arranged in a
    systematic or methodical way and individually accessible by electronic
    or other means” (article 1.2). Therefore, a great variety of
    collections of information can be considered as databases, such as
    timetables, telephone directories,encyclopedias, dictionnaries,
    Websites. The definition covers electronic and non electronic databases
    but it doesn’t cover collections of elements which are strongly
    interconnected ans thus dependent to each other, such as audiovisual
    works.
  • Classic copyright protection is granted to the author of a database
    if the “structure” of the database (choice or arrangement of the
    database contents) present originality.
  • The new sui generis right is granted to the maker of the database
    for the protection of the database contents. The condition of the
    protection is not originality. The maker is protected if he shows that
    there has been qualitatib\vely and or/quantitatively substantial
    investissments in either the obtaining, verification or presentation of
    the contents. The investment can be quantitative or qualitative. This
    could mean that the condition for the protection is not purely
    financial. If a sufficient amount of energy, skill or labour is shown
    the protection is also granted.
For example, an on-line database with job
announcements is protected by the sui generis right when its creators
just don’t copy them from the official sources but spend a lot of time,
effort and money in order to verify, select and classify, digitise or
give them a specific elaborated graphic form. The most these elements
are met the most possible is that the judge admits the existence of
substantial investment.

This right, which looks like a neighbouring right, grants to the
maker of the database the power to prevent any extraction or
re-utilization, evaluated qualitatively and/or quantitatively, of the
whole or substantial part of contents of the database. At the same time
tha maker can prevent even the extraction and/or re-utilization of
insubstantial part of the database contents if the extraction and/or
re-utilization is repeatedor systematic and provided that there is a
conflict with tha normal exploitation of the database or an unreasonable
prejudice to the legitimate interests of the maker.

For example, it was judged that somebody who
created a software which had been automatically connecting every 3
minutes (he made that because the connection automatically was cut at
the end of this three minutes period) to the on-line public telephone
directory in order to download its contents piece by piece, infringed
the database right.

The duration of the database right is shorter than the copyright
duration. It expires fifteen years from the first January of the year
following the date of completion of the database. If any substantial
change to the database contents resulting from the accumulation of
successive additions, deletions or alterations is made, the database
resulting from this new investment shall qualify for its own new fifteen
year- term of protection.

For example, in a legal database which contains all
the national and EU legislation, the continuous successive additions or
modifications of contents (addition of new laws, amendments of existing
laws etc) probably results to a new substantial investment, because they
require a significant amount of time and significant effort shown by the
legal specialists who have classified the new laws and carefully
examined the text of every existing law in order to add the amendments
and delete the dispositions that are abolished.

The European Court’s of Justice judgments on the database right

On November 2004, the European Court of Justice issued four decisions
concerning the European Database Directive. These decisions clarify for
the first time the legal regime of sui generis protection of databases.
In fact, although the database right protection was adopted in 1996, the
application of this regime by national courts presented some serious
difficulties, which in great part were the consequence of the abstract
character of the main key concepts of this new regime.
All cases concern similar facts. The main issue is the possibility of
the protection of collections of sport information by the sui generis
database right.
See for the analysis of these judgments : T. Synodinou, “Legal protection of databases: Analysis of the ECJ judgments”, available on line at:  https://www.academia.edu/3349096/Analysis_of_the_2004s_ECJ_rulings_on_sui_generis_database_right.

See also :T. Synodinou, Databases: sui generis protection and copyright protection, http://kluwercopyrightblog.com/2011/12/20/databases-sui-generis-protection-and-copyright-protection.