The Directive on the legal protection of databases protects databases by copyright if they are original by reason of the selection or arrangement of their content. Non-original databases such as compilations of legal cases and laws, listings of advertisements or databases of scientific publications can also be protected if the investment in obtaining, verifying and presenting the data was substantial. This protection is known as the “sui generis” right, i.e. a specific property right for databases that is unrelated to other forms of protection such as copyright. The copyright and the sui generis right may apply cumulatively if the conditions of protection for each right are fulfilled. The Directive’s provisions apply to both analogue and digital databases.
Review of the Database Directive
The second evaluation of the Database Directive from 2018 showed that, while the Database Directive provides added value, it could be revisited to facilitate data access and use. Following on from the European Strategy for Data, the Commission announced in its 2021 Work Programme and the Action Plan on Intellectual Property that it will review the Directive, notably to facilitate the sharing of and trading in of machine generated data and data generated in the context of rolling out the Internet of Things (IoT). The review will take place alongside the Data Act.
The European Commission has published two evaluations of the protection EU law gives to databases since the directive came into force in 1996. The first of these evaluations took place in 2005. The second evaluation of the Database Directive was published on 25 April 2018, as part of the third data package. The main purpose of the evaluation was to assess the effectiveness, efficiency, relevance, coherence and EU added value of the Directive, and in particular of the "sui generis" right, analysing whether it remains fit for purpose in the new legal, economic and technological environment.
The evaluation was supported by an external study. This supporting study also provided considerable evidence to back up the Commission's evaluation of the Directive. It contained a legal and an economic analysis, an online survey, in-depth interviews with legal experts and practitioners, and the results of a stakeholder workshop.
In order to inform its 2018 evaluation report, the European Commission carried out a public consultation between 24 May and 30 August 2017. The aim of the consultation was to understand how the Database Directive, and in particular the "sui generis" protection of databases, is applied and what impact it has had on users and makers. A total of 113 replies were received. These came principally from the publishing sector, the research and academic sector, the IT sector and the transport sector. The summary report of the public consultation was published in October 2017.
The consultation activities carried out by the European Commission and a contractor resulted in a synopsis report. This report provides an overview of the database market, analyses the impact and application of the directive, and assesses the need for adjustments to it in order to ensure a balance between database owners' rights and users' needs.