The City Livery Company for the
Communications and Content Industries
COPYRIGHT IN THE DIGITAL AGE
A summary on database right
The Database Directive (legislation campaigned for by UK publishers during the 1990s) was implemented into UK law by the Copyright and Rights in Databases Regulations 1997 ("DRegs"). Useful summaries can be found in Pinsent Masons Out-Law; Mondaq databases; and V|Lex UK among others.
The DRegs created an entirely new right (called 'database right') in respect of a database where there has been 'substantial investment in obtaining, verifying or presenting the contents of the database'.
The definition of 'database' is the same for copyright and database right – a collection of independent works or data, which are arranged in a systematic or methodical way and which are individually accessible.
The maker of the database (i.e. the person who invests) is the owner of the database right. Where the database is made by an employee in the course of employment the employer is regarded as the maker subject to any agreement to the contrary.
A person infringes database right in a database if they, without the consent of the owner, extract or re-utilise all or a substantial part of the database.
The repeated and systematic extraction or re-utilisation of insubstantial amounts may also infringe if taken together they are substantial.
The term of database protection is 15 years from the end of the year in which the database was made (or first made available to the public).
Review of Legal Protection of Database Directive 2017
The European Commission website offers the following comments dated October 2017 on the public consultation:
The public consultation took place between 24 May and 30 August 2017. It was conducted in the context of the ex-post evaluation of the Directive on the legal protection of databases. The aim of the consultation was to understand how the Database Directive, and in particular the sui generis protection of databases, is used, to evaluate its impact on users and to identify possible needs of adjustment. This summary report takes stock of the contributions and presents preliminary trends that emerge from them. A synopsis report will be published in due course.
Objectives of the consultation
The Database Directive (Directive 96/9/EC on the legal protection of databases, the 'Directive'), adopted in 1996, is part of the EU copyright acquis. It aimed to create a harmonised legal framework of ground rules for the protection of a wide variety of databases while ensuring the legitimate interests of users to access information in databases. Since the entry into force of the Directive, the role and importance of the database market have evolved. The public consultation aimed to gather information on the functioning and application of the Directive so as to analyse its impact on relevant stakeholders and identify possible needs of adjustment.
The results of the public consultation have been fed into the ongoing ex-post evaluation of the Database Directive. The Commission will analyse the functioning of the Directive, with a special focus on the sui generisprotection of databases. It will also examine whether the Directive is still fit-for-purpose in view of recent technological, economic and legal developments, in particular in an increasingly data-driven economy.
Who replied to the consultation?
The public consultation received a total of 113 replies: 83 from organisations and 30 from individuals. The largest number of replies came from Germany, Belgium and the United Kingdom.
As regards non-individual replies, the largest proportion of respondents were trade associations and businesses, followed by organisations representing civil society and non-governmental organisation. We did not receive contributions from national administrations or national regulators nor from consumers organisations.
Preliminary findings of the public consultation
Without prejudice to the in-depth analysis of the replies to the public consultation, which are presented in the synopsis report, the following overall preliminary trends can be observed:
More than half of the respondents consider that the original objectives of the Directive are still in line with the needs of the EU. However, views are divided as to whether the Directive has achieved its objective to protect a wide variety of databases.
As regards the sui generis right, more than half of the respondents consider that it sufficiently protects investments made in the creation, updating and maintenance of databases. However, opinions are divided as to whether the current scope of the sui generis right is still satisfactory. Contributions received focused, among other issues, on whether the sui generis right has brought more legal certainty for database makers and users (in particular concerning in which cases databases are protected and in which cases users' acts are licit).
Views are also split as to whether the Directive achieves a good balance between the rights and interests of rightholders and users. Opinions on the impact of the sui generis right on the re-use of data are equally diverging.
Finally, there is no clear consensus on which approach should prevail to achieve an adequate balance between database owners' rights and users' needs. A number of respondents would see merits in considering amending the sui generis right, while others take the view that no policy change should be proposed.
The Commission analysed in-depth the replies received, and published a synopsis report. The results contributed to the ex-post evaluation of the Database Directive.
Comparison US and EU database rights: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1613451
EC report on consultation 20 April 2018 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1613451
Database rights from 1 January 2021
UK Government guidance
UK citizens, residents, and businesses will not be eligible to receive or hold database rights in the EEA for databases created on or after 1 January 2021.
UK owners of databases created on or after 1 January 2021 will need to consider whether they can rely on alternative means of protection in the EEA – for example licensing agreements or copyright, where applicable.
UK legislation will be amended so that only UK citizens, residents, and businesses are eligible for database rights in the UK for databases created on or after 1 January 2021.
Existing database rights
Database rights that exist in the UK or EEA before 1 January 2021 (whether held by UK or EEA persons or businesses) will continue to exist in the UK and EEA for the rest of their duration. These rights are guaranteed under the Withdrawal Agreement.
Those in the UK who wish to use databases protected by these rights will continue to need the permission of the right holder(s).
Copyright in databases
Copyright protection for databases in the UK and EEA will not change after 1 January 2021.
The UK and all EEA member states are members of international treaties on copyright that ensure eligible works (e.g. databases that are original) are protected in all treaty countries. This does not depend on the UK’s relationship with the EU or EEA.
Published 30 January 2020