Commission of the European Communities (2005a)
|Commission of the European Communities (2005a)
|DG Internal Market and Services Working Paper
|Commission of the European Communities
|DG Internal Market and Services Working Paper, Commission of the European Communities (2005)
|Definitive , Open Access
|Key Related Studies:
|About the Data
|The evaluation was conducted on the basis of a restricted on-line survey addressed to the European database industry5 carried out by the European Commission's Internal Market and Services Directorate General in August and September 2005 and information received from the Gale Directory of Databases (“the GDD”), the largest existing database directory which contains statistics indicating the growth of the global database industry since the 1970s. Individual rightholder views expressed outside the stakeholder survey have also been taken into account.
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The purpose of this evaluation is to assess whether the policy goals of Directive 96/9/EC on the legal protection of databases1 (the “Directive”) have been achieved and, in particular, whether the creation of a special “sui generis" right has had adverse effects on competition. This is the first time that the Directive is subject to an evaluation. The aim of the Directive was to remove existing differences in the legal protection of databases by harmonising the rules that applied to copyright protection, safeguard the investment of database makers and ensure that the legitimate interests of users to access information compiled in databases were secured.
At the time of its adoption, the Commission reasoned that differences in the standard of “originality” required for a database to enjoy copyright protection impeded the free movement of “database products” across the Community. In particular, the Commission argued that the difference between the lower “sweat of the brow” copyright standard (i.e. involving considerable skill, labour or judgment in gathering together and/or checking a compilation) that applied in common law Member States and the higher “intellectual creation” standard that applied in droit d’auteur Member States created distortion of trade in “database products”.
In essence, the Directive sought to create a legal framework that would establish the ground rules for the protection of a wide variety of databases in the information age. It did so by giving a high level of copyright protection to certain databases (“original” databases) and a new form of “sui generis” protection to those databases which were not “original” in the sense of the author's own intellectual creation (“non-original” databases). The approach chosen in the Directive was to harmonise the threshold of “originality”. Those “non-original” databases that did not meet the threshold would be protected by a newly created right. – In a first step, this was done by adopting the higher standard that applied in droit d’auteur countries, which had the effect of protecting fewer databases by copyright (which was now limited to so-called “original” databases); – In a second step, for those databases that would previously have enjoyed protection under the “sweat of the brow” copyright, but no longer according to the harmonised “originality” standard, a new right was created – the “sui generis” right to prevent extraction and reutilisation of the whole or a substantial part of the contents of a database in which there has been substantial investment (“non-original” databases).
While “original” databases require an element of “intellectual creation”, “non-original” databases are protected as long as there has been “qualitatively or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents” of a database. The “sui generis” right is a Community creation with no precedent in any international convention. No other jurisdiction makes a distinction between “original” and “non-original” databases.
Main Results of the Study
The economic impact of the “sui generis” right on database production is unproven. Introduced to stimulate the production of databases in Europe, the new instrument has had no proven impact on the production of databases. Data taken from the GDD (see Section 4.2.3) show that the EU database production in 2004 has fallen back to pre-Directive levels: the number of EU-based database “entries” into the GDD6 was 3095 in 2004 as compared to 3092 in 1998. In 2001, there were 4085 EU-based “entries” while in 2004 there were only 3095.Is “sui generis” protection therefore necessary for a thriving database industry? The empiricalevidence, at this stage, casts doubts on this necessity. The European publishing industry, which was consulted in a restricted online survey, however produced strong submissions arguing that “sui generis” protection was crucial to the continued success of their activities. In addition, most respondents to the on-line survey (see Section 4.2.2) believe that the “sui generis” right has brought about legal certainty, reduced the costs associated with the protection of databases, created more business opportunities and facilitated the marketing of databases.At this stage, the evaluation concludes that repealing the Directive altogether or repealing the“sui generis” right in isolation would probably lead to considerable resistance by the EUdatabase industry which wishes to retain “sui generis” protection for factual compilations. However, The paper also concludes that leaving the Directive unchanged is an additional policy option for the Commission.
Policy Implications as Stated By Author
Policy options include: 1) repeal the whole Directive; 2) withdraw the sui generis right; 3) amend the sui generis protections; or 4) maintain the status quo. The Commission recommends further stakeholder consultation.
Coverage of Study
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