Database Directive - Sui Generis Right

Sui Generis Right

Copyright protection is not available for databases which aim to be "complete", that is where the entries are selected by objective criteria: these are covered by sui generis database rights. While copyright protects the creativity of an author, database rights specifically protect the "qualitatively and/or quantitatively substantial investment in either the obtaining, verification or presentation of the contents": if there has not been substantial investment (which need not be financial), the database will not be protected . Database rights are held in the first instance by the person or corporation which made the substantial investment, so long as:

• the person is a national or domiciliary of a Member State or
• the corporation is formed according to the laws of a Member State and has its registered office or principal place of business within the European Union.

Article 11(3) provides for the negotiation of treaties to ensure reciprocal treatment outside the EU: as of 2006, no such treaty exists.

The holder of database rights may prohibit the extraction and/or re-utilization of the whole or of a substantial part of the contents: the "substantial part" is evaluated qualitatively and/or quantitatively and reutilization is subject to the exhaustion of rights. Public lending is not an act of extraction or re-utilization. The lawful user of a database which is available to the public may freely extract and/or re-use insubstantial parts of the database (Art. 8): the holder of database rights may not place restrictions of the purpose to which the insubstantial parts are used. However, users may not "perform acts which conflict with normal exploitation of the database or unreasonably prejudice the legitimate interests of the maker of the database", nor prejudice any copyright in the entries. The same limitations may be provided to database rights as to copyright in databases (Art. 9:

• extraction for private purposes of the contents of a non-electronic database;
• extraction for the purposes of illustration for teaching or scientific research, as long as the source is indicated and to the extent justified by the non-commercial purpose to be achieved;
• extraction and/or re-utilization for the purposes of public security or an administrative or judicial procedure.

Database rights last for fifteen years from the end of the year that the database was made available to the public, or from the end of the year of completion for private databases (Art. 10). Any substantial change which could be considered to be a substantial new investment will lead to a new term of database rights, which could, in principle, be perpetual. Database rights are independent of any copyright in the database, and the two could, in principle, be held by different people (especially in jurisdictions which prohibit the corporate ownership of copyright): as such, database rights can be compared to the rights of phonogram and film producers.