Database Right

2 Sep 2017

Database right is a sui generis right to prevent extraction and/or re-utilization of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of a database. The right was created by art 7 (1) of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases (OJ L 77, 27.3.1996, p. 20–28) and transposed into the laws of the United Kingdom by The Copyright and Rights in Databases Regulations 1997 SI 1997 No. 3032.

Meaning of  "Database"
Art 1 (2) of the Directive 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." The definition was given a very broad interpretation by the Court of Justice of the European Union between paragraphs [20] and [36] of its judgment in C-444/02 Fixtures Marketing Limited v Organismos Prognostikon Agonon Podosfairou (OPAP) [2004] EUECJ C-444/02, [2005] 1 CMLR 16, [2004] ECR I-10549.

Legal Protection of Databases
The Directive creates two forms of protection:
  • Copyright protects an author's intellectual creation in the selection or arrangement of the contents of a database but does not extend to computer programs used in the making or operation of databases accessible by electronic means; and
  • Database right protects investment in obtaining, verifying and presenting the contents of a database.
Part II of the 1997 Regulations amends Part I of the Copyright, Designs and Patents Act 1988 ("the CDPA") in order to provide copyright protection for the intellectual creation of databases while Part III of the Regulations provides database right protection.

Policy
The recitals to the Directive explain that databases are a vital tool in the development of an information market and that the tool will also be of use in many other fields, considerable investment is required to develop advanced information processing systems and such protection will not take place without a stable and uniform legal protection regime for the rights of makers of databases.

Subsistence
Like copyright, database right comes into being automatically as soon as the database is created so long as the person who takes the initiative in obtaining, verifying or presenting the contents of a database and assumes the risk of investing in that obtaining, verification or presentation ("the maker") is a national, corporation or partnership that includes a national of a European Economic Area member state and there is qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the database's contents.  There is no provision for registering database rights.

First Ownership
The maker of a database is the first owner of the database right in a database by virtue of reg 15 of the 1997 Regulations. 

Term
The rules as to the duration of database right are complex.

The basic rule provided by art 10 (1) of the Directive is that database right runs from the date of completion of the making of the database and expires 15 years from 1 Jan of the year following the date of completion. However, it is qualified by art 10 (2) that provides that if the database is made available to the public at any time during those 15 years it shall expire 15 years after the 1 Jan following the date upon which the database was first made publically available. But if any substantial change, evaluated qualitatively or quantitatively, to the contents of a database, including any substantial change resulting from the accumulation of successive additions, deletions or alterations, which would result in the database being considered to be a substantial new investment, evaluated qualitatively or quantitatively is made, art 10 (3)  provides that such investment shall qualify for its own term of protection.

The combination of those provisions suggests that database right can continue indefinitely so long as investment in the renewal of the database is regularly maintained.

Infringement
Database right is infringed by the extraction and re-utilization of the contents of a database. "Extraction" means the permanent or temporary transfer of all or a substantial part of the contents of a database to another medium by any means or in any form. "Re-utilization" means "any form of making available to the public all or a substantial part of the contents of a database by the distribution of copies, by renting, by on-line or other forms of transmission." Art 7 (5) of the Directive provides that "repeated and systematic extraction and/or re-utilization of insubstantial parts of the contents of the database implying acts which conflict with a normal exploitation of that database or which unreasonably prejudice the legitimate interests of the maker of the database shall not be permitted.

Remedies
The remedies that apply to copyright infringement provided by the CDPA are extended to database rights in the UK by reg 23 of the 1997 Regulations.

Exhaustion of Rights
Art 7 (2) (b) of the Directive provides that the first sale of a copy of a database within the EU by the right holder or with his or her consent shall exhaust the right to control resale of that copy within the Union.

Licences and Assignments
Art 7 (3) of the Directive enables database right to be assigned, transmitted by operation of law or licensed. Licensing schemes between database right holders and users are regulated in the UK by Sched 2 of the 1997 Regulations.

Exceptions
Art 9 of the Directive entitles member states to "stipulate that lawful users of a database which is made available to the public in whatever manner may, without the authorization of its maker, extract or re-utilize a substantial part of its contents:
(a)  in the case of extraction for private purposes of the contents of a non-electronic database;
(b)  in the case of 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;
(c)  in the case of extraction and/or re-utilization for the purposes of public security or an administrative or judicial procedure." 

The British government has made extensive use of that exception in reg 20 and Sched 1 to the 1997 Regulations.

Review of the Database Directive
The operation of the Directive was reviewed in a working paper by the Directorate-General of the Internal Market in the First evaluation of Directive 96/9/EC on the legal protection of databases on 12 Dec 2005. The report found that the economic impact of database right on database production was unproven but there has been no clamour to abolish it. I commented on the evaluation in Database Rights: Commission Evaluation - Talk about Faint Praise 12 Dec 2005.

Effect of Brexit
Since database right protects databases that have been made by nationals of other EU member states in the UK, the continued subsistence of that right for such nationals is an issue for negotiation between HMG and the Commission. So too, of course, will be the database rights of British nationals in the remaining EU member states.

Further Information


Contact

Jane Lambert on +44 (0)20 7404 5252 during normal office hours or send her a message through her contact form.

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