In the meaning of the European Union Directive 96/9/EC on the legal protection of databases,the term database refers to a collection of independent works, data or other materials, which have been arranged in a systematic or methodical way, and have been made individually accessible by electronic or other means. In the meaning of the Directive the data or materials:
- must not be linked, or must be capable of separation without losing their informative content;
- must be organised according to specific criteria, which means that only planned collections are covered;
- must be individually accessible – mere storage of data is not covered by the term database.
A database can be protected by copyright as a literary work and/or by a sui generis database right:
- under the rules of international law - Berne Convention, the WTO/TRIPs Agreement and under the WIPO Copyright Treaty (WCT), original and creative databases enjoy copyright protection as literary works.
- under Directive 96/9/EC on the legal protection of databases, which creates a specific property right for databases, that is unrelated to other forms of protection such as copyright. This new form of “sui generis” protection applies to those databases, which are not “original” in the sense of an author’s own intellectual creation (“non-original” databases), but which involved a substantial investment in their making.
Both rights only apply to the arrangement of data – neither database copyright nor the sui generis right creates an additional protection for the individual elements of the database.
Copyright protection applies to databases that are creative/original in the selection and/or arrangement of the contents and constitute their authors’ own intellectual creation.
Copyright protection is granted to the author and expires 70 years after the author’s death.
Copyright protection has an international character – databases are protected by copyright in almost all countries in the world. The modalities of such protection may however vary from jurisdiction to jurisdiction.
The sui generis protection of databases applies if a substantial investment was made in obtaining, verifying and presenting its contents. A substantial investment is to be understood as a financial and/or professional investment, which may consist in the deployment of financial resources and the expending of time, effort and energy made in obtaining and collecting the contents.
The collection of data should be contained in a fixed base, which includes technical means – electronic, electromagnetic or electro-optical processes or other means – index, table of contents, plan or method of classification, to allow the retrieval of any independent material contained therein.
Database protection can apply to both electronic and non-electronic (paper) databases as well as both static and dynamic databases.
The term of protection of the sui generis right is 15 years following the database’s completion. However, if the database is published during this time, the 15-year term will start running from the publication date.
If a new substantial investment is made to an existing database (updates or supplements), the creator will have a new right to the altered database or its substantial part.
The sui generis right grants its holder two categories of rights:
1. the right to prevent the extraction of either all or a substantial part of the database. The term “extraction” refers to the permanent or temporary transfer of the whole or a substantial part of the contents of the database to another medium, by any means or in any form. It implies that some degree of choice or individual appreciation of the content to be extracted is made.
2. the right to prevent the re-utilisation of all or a substantial part of the database. The term “re-utilisation” refers to any form of making available to the public the whole or a substantial part of the contents of the database by distributing or renting copies, through on-line or other forms of transmission.
The expression “substantial part” of the contents refers to a part that could be substantial in quantitative or qualitative terms – therefore a part may be considered substantial even if it is quantitatively small.
The sui generis right protects, as an intangible asset, the results of the financial and/or professional investment carried out towards the methodical and systematic classification of independent data. This right is not a right over the information stored in the database and does not constitute an extension of the copyright protection which may apply to the contents of the database.
The holder of the sui generis database right is the person who undertakes the initiative of creating the database – the producer of the database – and takes the risk of investing. The investment’s substantial quality has to be proven by the producer, for example by providing invoices or information on the persons/employees involved in the work.