The European Union has attempted to solve the problem of database protection by creating specific protection rights for databases. Directive 96/9/EC, adopted in March 1996, provides two major categories of protection - copyright and a sui generis right specific to databases - in addition to a somewhat broad definition of just what a database is. Article 1, § 2 of the Directive defines a database as “a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means.” This definition has led to some perhaps counterintuitive holdings. In Belgium, a “pamphlet of self-help groups” has been held to qualify as a database, under UNMS v. Belpharma Communication (Court of Brussels, March 16, 1999.) A similar result has applied to a “collection of web pages” in Germany’s Federal Supreme Court, in Tele-Info-Cd (May 6, 1999).
The first category of protection specified by the Directive is copyright. The Directive states in Article 3 § 1 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.” This was apparently an effort to create some consistency between the copyright regimes of the member states, which had differing levels of “originality” required in order for a work to qualify for copyright protection.
Article 3 § 1 continues: “No other criteria shall be applied to determine their eligibility for that protection,” suggesting that any database (in whatever form) which is an intellectual creation of its author (at whatever level) enjoys copyright protection. There are limitations, however. Article 3 § 2 stipulates that “The copyright protection of databases provided for by this Directive shall not extend to their contents and shall be without prejudice to any rights subsisting in those contents themselves.” In other words, while you may enjoy copyright protection for the “selection or arrangement” of the facts you’ve chosen, you will not enjoy database copyright protection for the facts themselves. This could seemingly lead to unexpected results in a situation where, for example, an author invents characters and their dates of birth, storing the results in a database; although the “arrangement” of name and birthday could only take one or two conceivably useful forms, that form might receive protection as a database, while the original facts contained within would not.
In addition, the Directive creates sui generis protection against unauthorized use or extraction of the facts in the database, although again, not to the facts themselves. Two Directive articles on this topic are particularly interesting to examine.
Article 7 § 1: “Member States shall provide for a right for the maker of a database which shows that there has been qualitatively and/or quantitatively a substantialinvestment in either the obtaining,verification or presentationof the contents to prevent extractionand/or re-utilizationof the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database.”
Article 7 § 5: “The repeated and systematic extractionand/or re-utilizationof insubstantial parts of the contents of the database implying acts which conflict with a normal exploitation of that database or which unreasonably prejudice the legitimate interests of the maker of the database shall not be permitted.”The emphasis provided in the above examples points to terms which could, and indeed have, led to interpretational difficulties. The next section will demonstrate how these difficulties have arisen in a recent case, and their perhaps unexpected resolution.