Database Directive

Article 1(2) defines a database as "a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means". Non-electronic databases are also covered (para. 14 of the preamble). Any computer program used to create the database is not included (para. 23 of the preamble). Copyright protection of software is governed by Directive 91/250/EEC.

Under Article 3, databases which, "by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation" are protected by copyright as collections: no other criterion may be used by Member States. This follows from the 1994 Agreement on the Trade-Related Aspects of Intellectual Property Rights (TRIPS), a widely adopted treaty to which all World Trade Organization members are party. TRIPS clarifies and arguably relaxes the criterion for protection of collections in the Berne Convention for the Protection of Literary and Artistic Works, which covers "collections of literary and artistic works" and requires creativity in the "selection and arrangement" of the contents: in practice the difference is likely to be slight. Any copyright in the database is separate from and without prejudice to the copyright in the entries.

The acts restricted by copyright are similar to those for other types of work (Art. 5):

• temporary or permanent reproduction by any means and in any form, in whole or in part;
• translation, adaptation, arrangement and any other alteration;
• any form of distribution to the public of the database or of copies thereof, subject to the exhaustion of rights;
• any communication, display or performance to the public;
• any reproduction, distribution, communication, display or performance to the public of a translation, adaptation, etc.

This shall not prevent the lawful use of the database by a lawful user [Art. 6(1)]: Member States may provide for any or all of the following limitations [Art. 6(2)], as well as applying any traditional limitations to copyright:

• reproduction for private purposes of a non-electronic database;
• use for the sole purpose 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;
• use for the purposes of public security or for the purposes of an administrative or judicial procedure.

Copyright protection usually lasts for seventy years after the death of the last publicly identified author. Anonymous or pseudonymous works gain protection for the later of 70 years after the work is lawfully made available to the public or 70 years from creation. If national legislation makes particular provision for collective works or for a legal person (i.e. a body corporate) to be a rights holder the term of protection of calculated in the same way as for anonymous or pseudonymous works, with the exception that if any natural persons who created the work are given credit in versions made available to the public, the term of protection is calculated according to the lives of those authors. Art. 1, Directive 93/98/EEC).

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 [a] 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 [Art. 7(1)]. 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 reutilisation 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.

• Copyright law of the European Union
• Related rights

1. ^ Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs, OJ L 122, 17 May 1991, p. 9.
2. ^ Berne Convention for the Protection of Literary and Artistic Works
3. ^ Council Directive 93/98/EEC of 29 October 1993 harmonizing the term of protection of copyright and certain related rights, OJ L 290, 24 November 1993, p. 9.

• Text of the directive
• First evaluation of Directive 96/9/EC on the legal protection of databases, 2005-12-12.
• Gasaway, L.: Databases and The Law, Cyberspace law course, Spring 2006, University of North Carolina at Chapel Hill. URL. Retrieved 2007-04-14.