Database Protection [European Union]

On December 12, 2005, the European Commission published an evaluation of the protection EU law gives to databases. The evaluation concludes that the economic impact of the “sui generis” right on database production is unproven. However, it also notes that the European publishing industry consulted in the online survey beleives that “sui generis” protection is crucial to the continued success of their activities. In addition, most respondents to the associated online survey believe that the "sui generis" right has brought about legal certainty, reduced the costs associated with the protection of databases, created more business opportunities and facilitated the marketing of databases.The study concludes with an elightening examination of four policy options:
Repeal the whole Directive
Withdraw the “sui generis” right
Amend the “sui generis” provisions
Maintaining the status quo

The staff working paper invites stakeholders to submit their views, comments, and vidence on the economic impact of "sui generis" protection, by 12 March 2006 to Markt-D1@cec.eu.int. The evaluation is available online http://europa.eu.int/comm/internal_market/copyright/prot-databases/prot-databases_en.htm.The European Directive on the legal protection of Databases was adopted in February 1996 and has now been implemented into the legislation of the 25 Member States and the EFTA. It created a new exclusive 'sui generis' right for database producers, valid for 15 years, to protect their investment of time, money and effort, irrespective of whether the database is in itself innovative ("non-original" databases).

According to the Commission evaluation, interpreting the precise scope of the “sui generis” right has proven difficult, especially as no jurisdiction had a comparable legal instrument prior to the introduction of this new form of protection. The “sui generis” provisions have thus caused considerable legal uncertainty, both at the EU and national level. In addition, the scope of the provision was severely curtailed in a series of judgments rendered by the ECJ in November 2004. This has, at least with respect to producers of databases that “create” the data and information that comprises their databases, decreased the protection for “non-original” databases.

The report goes on to conclude that although it was introduced to stimulate the production of databases in Europe, the “sui generis” protection has had no proven impact on the production of databases. According to the Gale Directory of Databases, the number of EU-based database“entries” was 3095 in 2004 as compared to 3092 in 1998 when the first Member Stateshad implemented the “sui generis” protection into national laws:

In fact, the number of database “entries” dropped just as most of the EU- 15 had implemented the Directive into national laws in 2001. Nevertheless, the European publishing and database industries claim that “sui generis” protection is crucial to the continued success of their activities. 75% of respondents to the Commission services’ on-line survey are aware of theexistence of the “sui generis” right; among these, 80% feel “protected” or “wellprotected” by such right. 90% believe that database protection at EU level, as opposedto national level, is important and 65% believe that today the legal protection ofdatabases is higher than before harmonisation.

Most respondents to the on-line survey also believe that the “sui generis” right has helpedEurope to catch up with the US in terms of investment but, at the same time, that the“sui generis” right did not help to significantly improve the global competitiveness of theEuropean database sector. The data taken from the GDD reveal that the economic gapwith the US has not been reduced.

"While this endorsement of the “sui generis” right is somewhat at odds with the continuedsuccess of US publishing and database production that thrives without “sui generis” typeprotection, the attachment to the new right is a political reality that seems very true forEurope," write the autors of the study.

Rodney D. Ryder