Position Paper on the Directive on the legal protection of databases

General

At the moment there is no overall regulation on the protection of databases in the European Community. As far as existing regulations in Member States contain provisions (on parts), it is uncertain whether they correspond. Because of the great investments required to make or to keep a database, it is necessary that an appropriate protection is safeguarded. On the other hand, provisions are also necessary for the lawful users of databases to be able to make full and practical use of their rights.

Overview on the legal protection of databases as proposed in the Directive

Remarks on particular parts of the Directive

Article 1: Definitions

We welcome the clear definition of database, which has been subject of considerable debate in several Member States. We also welcome the clear statement that databases, as defined, will be given legal protection as Literary Works under copyright law, irrespective of whether they are on-line, on CD-ROM or whatever. Concerning Article 1, paragraph 3 and 4, we would like to stress the importance of having the terms 'insubstantial' and 'substantial' defined more accurately.

Article 2: Object of protection: right to prevent unfair extraction

We regret the creation by the European Commission of a separate and unknown sui generis right for certain types of databases, which do not deserve full copyright protection. It should get particularly close attention before it will be adopted.
Our concern is based on a number of reasons:

• The term 'unfair extraction', although defined in the draft Directive, has no track record in law and is therefore uncertain for database producers, users and Courts to interpret.
• The period of ten years' protection seems inadequate, considering the 50 (or even 70) years other databases whose individual records are copyrightable enjoy. Similar expenditure of time, effort and money may go into the creation of both types of database.
• Many experts were already unanimous that sui generis is not the way to protect such databases, copyright was.
• We do not see the need to distinguish electronic and print publications in this way, especially as these days print publications are frequently produced from electronic equivalents. For example, a telephone directory would deserve 50 (or 70) years' full copyright protection in print form, and only 10 years' weaker protection in electronic form. Even though the chances are that the print form was created from the electronic form.

Article 4: Incorporation of works or materials into a database

We welcome the inclusion of a provision that enable users to incorporate bibliographical data or brief abstracts, quotations or summaries without having to seek permission from rights owners. This reflects accepted practice.

Article 6: Exceptions to the restricted acts to copyright in the selection or arrangement

We welcome the provision in this article which would allow users to display the contents in order to use the database.

Article 7: Exceptions to the restricted acts to copyright in the contents

Article 7.1 is not formulated very clearly. As we understand this paragraph, Member States shall apply the same exceptions to any exclusive copyright or other rights for purposes, like research and private study. For example, a user will be permitted to download everything he finds in the database for personal private use without seeking any permission. We expect that the activities of the libraries qualify as exceptions and will be defined as activities for private and research purposes.

However for the purpose of teaching a special provision has been made by the European Commission. To avoid misunderstandings we would like to suggest to start 'in respect' with a new sentence.

At present, there is considerable confusion about the amounts which may be downloaded. There is similar confusion about the use of downloaded information as to whether it may be passed on to a third party or copied for a class of students, etc. We welcome the proposal on page 48, last paragraph, that contracts for the supply of database goods or services should specify what acts of downloading, reproduction in paper form, adaptation and so on are to be permitted. A reference to this should be made in Article 7.2.

Article 8: Compulsory licenses

We see this article as an important new development

Article 9: Terms of protection

A major issue concerns the duration of protection. Unfortunately, while the draft Directive addresses this question, the solution proposed is vague. In particular, there needs to be a clear provision in the Directive on the duration of protection for the contents of a database which is continually updated - as most of them are.

Article 1.4 only defines insubstantial changes to the selection or arrangement of the contents of a database. Article 9.3 does not refer to updating and Article 9.4 does not define what insubstantial changes to the contents are and what will happen to the protection according to copyright and to unfair extraction.

The problem is, does the updating or addition of a single record 'restart the clock' for the contents of the whole database? Or should we see any addition or change to the database as 'insubstantial', so that the whole database may only be protected for 50 years (or 70) from when it was first published. Alternatively, does every addition to the contents exist separately in the sense that older records go out of protection 10 or 50 or 70 years after their addition to the database?

The first option carries the risk that the protection will never end. We do not think that databases need never-ending protection. The second option will not encourage database producers to produce good quality databases. To have legal protection of the database removed after 50 (or 70) years seems illogical, as a good database grows and improves with time. The producers may react by e.g. not bothering to amend databases or making cosmetic changes to produce 'new' databases etc. This certainly would not be of value to the users.

We prefer the last suggested approach. Each added item or items should start their own clock ticking. Technically it is quite easy to datestamp each record in the database. Although it will bring administrative and control problems, to the users it seems the fairest approach.

We would urge that an addition to the Directive should make the intentions absolutely clear whatever the proposed course.

Relation with the Berne Convention

In Clause 38 it is stated that provisions to prevent unfair extraction made by the Member States should only apply to databases whose authors or makers are nationals or habitual residents of third countries or whose producers are not established in a Member State, if such third countries offer comparable protection to databases produced by nationals or habitual residents of the Community. In other words reciprocity is a condition for this kind of protection. This is inconsistent with the protection copyright provides.

The Berne Convention holds the basic principle of assimilation: provision for nationals or habitual residents apply only to nationals or habitual residents of all countries which have undersigned the Convention. To have two regimes for the protection of the contents of a database with third countries will be confusing and inefficient.

This note tries to concentrate on main matters of substance for non-profit information providers. It is not comprehensive, and should not be read as such. EBLIDA protects the interests of 95.000 libraries throughout Europe.

EBLIDA, The Hague March 1993