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.
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.
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.
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.
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.
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;