Crash course on database rights: Requirements for protection
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The Directive introduces two separate ways through which a database can be protected. First, it confirms the existing practice in several Member States that a database can be protected by copyright. And second, it introduces a new, independent right (legal scholars call this a "sui generis" right) for databases. To qualify for protection under those rights, a database must meet certain requirements. A database can qualify for both rights at the same time (article 7 §4).
Requirements for copyright protection
Several member states already recognized that databases, or collections of facts in general, could be protected by copyright. However, the requirements to qualify and the scope of protection varied from state to state. To harmonize this state of affairs, the Directive stipulates that databases which, by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation shall be protected as such by copyright (article 3). Member states may not introduce other, additional requirements to limit the copyright protection of databases.
Requirements for the sui generis protection
Even with the harmonized rules on copyright protection for databases, there are still a large number of databases that are left unprotected. To overcome this problem, the Directive also introduces a so-called sui generis protection regime.
To qualify for the sui generis database protection, the creator of the database must show that there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents (article 7 §1). It does not matter what the selection method was, or how much creative effort was involved. Thus, this is purely a "sweat of the brow" protection regime.
The substantial investment can be found e.g. in the work and money required to obtain the individual elements. For example, collecting people's birth dates by visiting all church archives and other public records could qualify. The design of a user interface, or the digitalization of existing paper records could also be seen as a substantial investment. Compiling musical tracks on a compact disc or other carrier also does not qualify, because recital 19 states that this shall not be seen as a substantial investment.
Various court proceedings in member states have revolved around the definition of "substantial". An important question was whether an investment could be seen as substantial if the investment was not directly directed towards the creation of the database. For example, the telephone company maintains a list of subscribers for billing purposes. This list includes their names, addresses and telephone numbers. Creating a telephone book from this list is not very difficult. But does the telephone company now hold a database right to the telephone book?
Courts in several countries have held that even if the database is a "spin-off" of some other activity, the creator may hold a database right if that other activity required a substantial investment. See e.g. in France France Telecom vs. MA Editions (Tribunal de commerce de Paris, 18 June 1999), in Germany Tele-Info-CD (Bundesgerichtshof, 6 May 1999), or in the Netherlands KPN v. Denda (Gerechtshof Arnhem, 15 April 1997, follow-up in Rechtbank Almelo, 6 December 2000). However, the case law is not always consistent. For instance, the Dutch Court of Appeal in The Hague held in the case of NVM vs. De Telegraaf (21 December 2000) that publishing a database originally set up for internal use was a mere spin off that did not require a substantial investment.
Individually accessible elements
It is required that the elements in the database are individually accessible by electronic or other means. A paper list easily qualifies, as would the contents of an electronic database created using MySQL or another standard database management system. A movie does not qualify, even though it is comprised of multiple individual images. These images are not directly individually accessible. Additionally, a recording or an audiovisual, cinematographic, literary or musical work is explicitly excluded (recital 17).
In Germany, in a lawsuit regarding a website which was "framed" (indexed and displayed in an HTML frameset) by a third party, the court held that a web site could be regarded as a database comprising a collection of web pages (baumarkt.de, Oberlandesgericht Düsseldorf, 29 June 1999).
In a paper collection, the individual elements are always accessible to a human reader. However, with electronic collections this is not always the case. At the very least the human reader needs to know the format in which the elements are stored in the collection. And usually also an electronic means to search and retrieve elements is necessary. This would mean that an electronic database is only protected when a search/retrieval interface is provided as well.