In 1996 the European Union adopted the Database Directive, which aimed to harmonise the treatment of databases under copyright law and introduced the sui generis database right for non-original databases. Sui generis database rights are separate from copyright. They protect the “sweat of the brow” of the person who has made a substantial investment in obtaining, verifying, or presenting the contents of a database.
In 2005 the European Commission released its first (and only) evaluation report on the impact of the Database Directive. It found that there was no evidence that the sui generis right has improved EU competitiveness by increasing the production of databases. In contrast, the presence of the sui generis right has produced a confusing legal environment in which users do not know if (or how) their uses are subject to the sui generis right.
Now the Commission is asking for feedback on what to do with the Database Directive, in particular the sui generis protection. Creative Commons responded to the Commission’s survey, and you can read our answers here.
The Database Directive has failed to give database producers that wish to make their databases available on an open access basis the choice to opt out of the sui generis protection or a way to communicate conditions for reuse. This has led to some recent projects (such as Wikidata and Europeana) to simply sidestep the right altogether by releasing their data into the public domain using the CC0 Public Domain Dedication, thus neutralising copyright and sui generis rights to ensure that their data is freely (re)usable. It should be noted that the most recent iteration of the Creative Commons suite (version 4.0 released in 2013) licenses sui generis database rights alongside copyright, but the extent of the use of the 4.0 licenses as a tool primarily to address the sui generis right is unclear.
We’ve also worked with our partners at COMMUNIA to prepare a short policy paper, which echoes the recommendations we provided to the consultation.
The Commission should repeal the sui generis database right and harmonize the limitations and exceptions for the copyright section of the Database Directive with the Infosoc Directive. 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. It should also expand the sui generis exceptions and make them mandatory. Finally, it should set a maximum term so that there cannot be perpetual extensions.
The sui generis protection in the Database Directive has caused more harm than good. It’s time for it to go.