A few weeks ago the European Commission published a study on the ongoing evaluation of the Database Directive. The report was led by the Joint Institute for Innovation Policy, and contains an analysis of last year’s public consultation, as well as information from expert interviews and a stakeholders’ workshop.
The Commission’s evaluation study confirms some of our suspicions that the sui generis right is doing little to increase the production of databases in the EU. The report notes, “the effectiveness of the sui generis right, as a means to stimulate investment on databases, remains unproven and still highly contested” (p. ii). Perhaps not surprisingly, the report shows a split between the views of database producers and users. Whereas users argue that the confusion and overall ineffectiveness of the sui generis right means it should be repealed, some database makers take the opposite view, claiming that the sui generis right “is an effective means to protect databases which is often used alongside other means of protection, such as contractual terms, copyright and technological measures” (p. ii).
The evaluation of the Database Directive
To recap the issue, the study is about Directive 96/9/EC on the legal protection of databases (Database Directive). The Directive came into force on 27 March 1996. It attempted to harmonise the copyright rules that applied to original databases, and also created a new sui generis right to protect non-original databases on which major investments have been made by database makers.
Last year the Commission launched a public consultation on the application and impact of the Database Directive. Communia responded to the consultation, and published a policy paper with recommendations for the future of the Database Directive. We argued that even though the Directive has successfully harmonised the legal protection of databases with regard to copyright, there is no clear evidence that the sui generis right has improved the interests of businesses or improved EU competitiveness by increasing the production of databases. And the introduction of the sui generis right has increased the complexity and confusion for database producers as well as users.
Our recommendations included the following:
- repeal the sui generis database right;
- harmonize the limitations and exceptions provided in the Database Directive with the Infosoc Directive and make them mandatory;
- if it is not possible to fully revoke the sui generis right, the Commission should amend the Database Directive to introduce a system whereby producers of databases must register to receive protection under the sui generis right; and
- set a maximum term so that there cannot be perpetual extensions of database protection.
Exclude public sector data sets from the Database Directive
The study observes that many respondents to the consultation — including users and research bodies — “think that [the] sui generis right clashes with PSI directive … [and] that publicly-funded databases should be excluded from the sui generis right protection as official works under the copyright regime” (p. 120). The report concludes:
There is strong evidence that there is no coherence, a clash or no clarity or uncertainty as regards the relationship between the Database Directive or at least the sui generis right and the PSI directives and open access policies. The sui generis right is seen by many as a barrier to innovation and knowledge exchange and thus to economic growth as research and public data cannot be reused either at all (if refusal to license), or less fast or at a greater cost (p. 121).
The authors of the report suggest that one possibility for intervention would be to remove the protection of the sui generis right for public bodies. This is aligned with the recent proposed revisions to the PSI Directive (released on the same day as this study), which includes a specific clarification that where databases fall under the scope of the PSI Directive, the public sector body responsible for the database may not use the Database Directive to prevent or restrict the reuse of the data.
Repeal the sui generis right? What is possible?
Regarding the future of the sui generis right, the report states, “The Commission may want to consider abolition. There is no evidence that the sui generis right has had a positive effect. There is evidence that it causes problems. There is evidence that it is not needed in the US” (p. 126). At the same time, the study recognises that such abolition “may be as daunting if not more than in 1996 because there are far more Member States and it will also be more costly than keeping the sui generis right as Member States will have to remove it from their law and then the EU will have to invoke another Directive or Regulation to harmonise parasitism and the sui generis right was meant to codify/replace parasitism in the first place” (p. 126).
In our earlier policy paper we called for the sui generis right to be eliminated altogether, with the fallback option being that the right should only be made available to those database producers who have registered for it. That way it would ensure that only those entities who actually need (or truly want) the right would get it. The study considers the recommendation provided by Communia, Creative Commons, Wikimedia, Copyright4Creativity, EDRi, and others to introduce a formality such as registration for database makers to receive the sui generis right.
The report recognises that this is indeed an legally-workable proposal: “Such a registration system would be entirely possible under international law, as the rule against the use of formalities in Article 5 of the Berne Convention applies only in relation to copyright aspects of databases” (p. 71).
Finally, the report comes upon a solution similar to what we recommended in our policy paper and response to the consultation:
Rather than abolishing the sui generis right, the European Commission might reflect on the advantages of (and any objections to) the following course of action:
- Making the right available by registration;
- As an EU-wide right;
- Tailored so as to be balanced, with an array of exceptions equivalent to those conferred in relation to copyright generally;
- Under an EU Regulation (so as to avoid the divergences that emerge in implementation);
- With pre-emptive effect on national unfair competition law (so that, in the applicable field, one must register or have no protection) (p. 139).
The sui generis right has not stimulated the production of databases. Instead it has thwarted the legitimate interests of users to access information compiled in databases by creating a confusing legal environment in which users do not know if (or how) their uses are subject to the sui generis right. If full repeal of the sui generis right is not available (or would cause more difficulties), then the registration approach — combined with the harmonisation with copyright limitations and exceptions — is the reasonable path to take.