Crash course on database rights: Ownership

The owner of a protected database is the entity that took the initiative and the risk of investing in the creation of the database (Recital 41). This recital also explicitly excludes subcontractors. This is unlike copyright, where a subcontractor normally retains the copyright unless the contract stipulates otherwise. Like with copyright, the rights to a database produced by employees of a company belong to that company.

Owner of website

In the German case (Oberlandesgericht Düsseldorf, 29 June 1999), a web site could be regarded as a database comprising a collection of web pages. However, in this particular case the owner of the web site could not prove a substantial investment in the creation and/or maintenance of the database. Further, the site ran advertisements on a commission basis, and so the court concluded that the owner of the web site was not the entity bearing the commercial risk and thus could not be considered the maker of the database.

Government-made databases

In several EU Member States, publications by the government are not protected by copyright. Although not mentioned explicitly in the Directive, it seems reasonable that in those states also databases produced by the government are not protected by database rights. For example, the Netherlands have explicitly excluded such government-made databases from protection.

Of course, such an exclusion does not apply if a private company compiles a database with information obtained from the government. So a publisher who release a database with laws can claim protection, even though the items in the database were published by the government. However, if the government itself offered such a database, it would be unprotected.

This particular case occurred in Vermande vs. Bojkovski (Pres. Rb. The Hague, 20 March 1998) in the Netherlands in 1998, before the Database Directive was implemented as national law there. Bojkovski had copied Dutch laws and regulations from a CD-ROM sold by Vermande, and claimed the benefit of article 11 of the Dutch copyright act, which excludes government publication from copyright protection. Vermande, however, also based its claim on a database right on the CD-ROM. The court refused to grant the claim because the Directive had not yet been implemented, despite the deadline of 1 January 1998, and so it would be unfair to Bojkovski to already grant protection to Vermande, now that apparently the Dutch government had reasons to delay introduction.

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