The European Union’s Database Directive applies to all databases marketed in the European Union which contain some element of “intellectual creation”.   In determining whether or not there has been sufficient intellectual creation, the burden of proof is on the database maker to demonstrate that there has been a “substantial investment”, viewed qualitatively or quantitatively, in the obtainment, verification or presentation of the database contents.   Precisely what a substantial investment entails, however, is not defined, although it appears as though the time, money and effort invested in producing the database will be relevant.

Once this has been established, the database owner is then vested with the right to prevent the unauthorized extraction or re-utlization of the whole or substantial parts, evaluated qualitatively or quantitatively, of the contents of the database.   Extraction and re-utilization are then defined broadly,  being designed to prevent not only ‘the manufacture of a parasitical competing product’, but also ‘any user who, through his acts, causes significant detriment, evaluated quantitatively or qualitatively, to the investment.’   Article 7(5) of the Directive then further extends this right by prohibiting the repeated and systematic extraction or re-utilization of insubstantial parts of the database where such acts would conflict with the normal exploitation of the database, or would prejudice the legitimate interests of the maker of the database.  These rights last for an initial period of 15 years, plus an additional 15 years for for any further investment that the compiler makes which results in a “substantial change” to the database.

At face value, therefore, the sui generis right which the European Database Directive introduces has much to commend it.  Specifically, this arises from the fact that it is expressly concerned with protecting the underlying commercial value of the database.  Thus for instance, only those who take the initiative and risk in compiling information are considered to be database makers for the purposes of the Directive.   These people are then vested with a number of rights which, in essence, amount to little more than a right to the undisturbed commercial exploitation of the information contained therein.  Beyond this, however, the Directive can be seen as suffering from several fundamental flaws.

Due to the extensive rights which database makers are conferred, they are essentially given a monopoly over the exploitation, commercial or otherwise, of the database contents.  Whilst this is to some extent mitigated by the existence of a number of exceptions, these exceptions are very limited.   Accordingly, database makers are given the most extensive rights in information yet, without there being any corresponding benefits or improvements to the public domain.   The negative effects of this are then magnified by the fact that these rights have the potential to be perpetual.   Clearly, this is the antithesis to any effective regime dealing with rights in information, for it privileges the interests of the investor over, and at the expense of, those of the public.   In sum, therefore, the Directive can be seen as creating ‘one of the least balanced and most potentially anti-competitive intellectual property rights ever’.

Please click here to read the full text of the European Union Database Directive.