What are related rights?
Related rights (or neighboring rights) are specific rights that protect the effort of various actors of the creative industry (the so-called "auxiliaries of creation") other than the authors themselves, such as performers (musicians, actors) and producers (record companies, broadcasting organisations, film producers). There is much less harmonisation concerning related rights than concerning copyright; therefore, substantial differences between related rights in various EU Member States may exist. In some jurisdictions, these rights may have considerable impact on research activities, protecting, for example, scientific and critical editions of public domain works or unoriginal photographs (such as those taken by satellites). But the related right that is the most important for data-intensive research is the sui generis database right, created by the Directive 96/9/CE on legal protection of databases (the Database Directive). This right, unlike most other related rights, is heavily harmonized across the EU.
What is the sui generis database right?
The sui generis database right is a right created by the Database Directive. It protects databases regardless of their originality, it is therefore different from copyright. The only criterion for this special protection is substantial investment in the obtaining, verification or presentation of the contents.
A database is defined 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 (art. 1(2) of the Database Directive). Software is excluded from the definition, even though the distinction between software and data is sometimes difficult in practice.
Databases, if the selection or arrangement of their contents meet the originality standard, may be protected by copyright (see Copyright Law Overview). The sui generis right is independent from copyright, and it may protect both original and unoriginal databases.
In order for a database to be protected by the sui generis right there must be a substantial investment in either the obtaining, verification or presentation of its contents. Please note that the investment in the creation of the contents is not relevant.
What is the required threshold of investment remains rather unclear and may vary depending on the jurisdiction and circumstances. Some decisions recognise an investment of several thousands euros as sufficient, while others place the bar much higher. In general, if the creation of the database required several months of work of a qualified team of researchers, the database is likely to attract legal protection.
Please note that the protection by the sui generis database right is independent from the copyright status of data in the database (the definition of a database mentions ‘independent works, data or other materials’). Therefore, elements that are not protected by copyright (such as purely factual statements, measurements, quantitative data) may fall within the scope of a monopoly as parts of a database.
Who does the sui generis database right belong to?
The sui generis database right belongs to the maker of the database, defined as the person (natural or legal) who bears the risk of the investment. Therefore, if a database is created in the course of employment, the right will belong to the employer, and not the employees.
In practice, the investment can be made jointly by several entities (e.g. research institutions participating in one research project). In such a case, it shall be assumed that the right belongs jointly to all the investors, and that the benefits should be shared in proportion to their investment, unless a contract between the investors specifies otherwise.
What are the restricted acts (exclusive rights of the maker of a database)?
The maker of a database can prevent extraction or re-utilization of the whole database or of its substantial part.
Re-utilization is any form of making available to the public, including by on-line transmission. It corresponds to the distribution right (see Copyright Law Overview).
Please note that extraction and re-utilization of an insubstantial part of the database cannot be restricted. However, repeated and systematic extraction and/or re-utilization of insubstantial parts of the database can also be prohibited if it unreasonably prejudices the legitimate interest of the maker of the database (i.e. if it amounts to an extraction and/or re-utilization of a substantial part of the database).
In evaluating whether a part of a database is substantial, both qualitative and quantitative aspects should be taken into account (i.e. a part is substantial if it constitutes e.g. 40% of the whole database, but also if it is qualitatively small (e.g. 1%), but containing qualitatively important data (e.g. data that only exist in this one database)).
What is the term of protection?
The exclusive rights of the maker of a database expire 15 years after the completion of the database. However, a new substantial investment is made e.g. in updating the database, it shall be considered a new database, and its term of protection is renewed as well. This means that in theory a database can be protected forever, as long as its maker makes a substantial investment in it at least every 15 years.
Are there any exceptions to the sui generis database right?
A lawful user of a database (i.e. a user that has lawful access to the database) can freely extract and re-use insubstantial parts of a database. However, repeated and systematic extraction and/or re-utilization of insubstantial parts which amounts to an extraction and/or re-utilization of a substantial part is not permitted.
Furthermore, extraction (but not re-utilization!) by a lawful user, even of substantial parts of a database is permitted in two cases:
- if it’s for private purposes - unfortunately, this applies only to non-electronic databases;
- if it is for non-commercial scientific research, as long as the extraction is justified by its purpose and the source is indicated.
Please note that these exceptions apply only to extraction (copying) and not re-utilization (any form of communication and sharing, even within one research team!) of the database, their scope is therefore extremely limited.
How to license the sui generis database right?
The sui generis database right can be licensed or transferred in the same way as copyright (see Licensing Practice). Most of the public licenses, however, does not take this right into account. Nowadays, version 4.0 of Creative Commons licenses concern both copyright and the sui generis database right.