On Wednesday the 2nd of March we hosted a Salon on the treatment of the Sui Generis Database Right (SGDR) in the European Commission’s proposal for a Data Act.
Moderated by Paul Keller, the Salon started with Krzysztof Nichczynski (DG Connect, European Commission), who shared insights into the Commission’s thinking on the Sui Generis Database Right and on how it relates to the policy objectives related to increasing access to IoT data and Business to Government data sharing in the Public Interest. This was followed by a presentation by Martin Husovec (Assistant Professor of Law at LSE), who raised a number of concerns about the Commission’s approach and pointed out that there is a need for a more holistic approach to the Sui Generis Database Right.
On Wednesday 2nd of March at 1500 CET we will host the first COMMUNIA Salon of 2022. This edition will focus on the treatment of the Sui Generis Database Right (SGDR) in the European Commission’s proposal for a Data Act that was published on the 23rd of February. The proposal contains a provision that the Sui Generis Database Right “does not apply to databases containing data obtained from or generated by the use of a connected device”.
This limitation of the scope SGDR — welcome as it is — falls way short of a proper review of the Sui Generis Database right that was supposed to be part of the Data Act proposal. We have long been critical of this this ill-fated right and have calls for its revocation. In this light the proposed Data Act is another missed opportunity to correct the mistake that the EU made when it introduced the SGDR as part of the 1996 Database Directive.
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 Whereas users argue that the confusion and overall ineffectiveness of the sui generis right means it should be repealed, some database makers take the opposite view, claiming that the sui generis right “is an effective means to protect databases which is often used alongside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.
The European Commission has launched a public consultation on the application and impact of the Database Directive on legal protection of databases. The Directive offers copyright protection for original databases and creates a new right called the sui generis right to protect databases on which major investments have been made. In the light of this consultation Communia has published its view on the Database Directive in its 12th policy paper. You can read the entire policy paper here.
The Directive aimed to remove existing differences in the legal protection of databases by harmonising the rules that applied to copyright protection. In addition it wanted to safeguard interests of businesses and users alike, namely the investment of database makers, and ensure that the legitimate interests of users of information contained in databases were secured. Continue reading →