The sui generis database right

2019-06-13

The sui generis database right is an exclusive right that protects databases against unauthorised extraction and re-utilisation of their content. It is distinct and independent from copyright, which protects original works. It was introduced by the Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases (hereinafter: Database Directive). Little known and rarely litigated, this right (belonging to the family of « related rights », i.e. similar but independent from copyright) is of paramount importance for language resources. This article will provide you with basic information about the sui generis database right.

What is protected by the sui generis database right? The sui generis database right protects a database, 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 » (article 1(2) of the Database Directive). The definition covers not only electronic databases, but also analogue archives. A website or an encyclopedia can also meet this definition. It has even been ruled that a topographical map is a database within the meaning of the Database Directive (Court of Justice of the European Union, C-490/14 Verlag Esterbauer)! It seems that most language resources could also qualify as databases.

What are the conditions for protection? A database is protected by the sui generis database right if and only if there has been a « quantitatively or qualitatively substantial investment in either the obtaining, verification or presentation of its contents ». Unfortunately, little can be said about the threshold of this investment (so in practice a lot will depend on the talents of one's lawyers…), but it seems relatively low; it is quite safe to say that if obtaining, verification or presentation of a language resource requires days of highly skilled labour, then the resource will likely to be protected by the sui generis right. It should be noted that the sui generis database right is completely independent from the originality of the content, and so a database of public domain material (e.g. train schedules) can still be protected by the sui generis right.

Who holds the sui generis database right? The sui generis database right belongs to the « maker » of the database. The term is misleading, because it is not intended to designate the person (or persons) who actually worked on the database, but the entity (or, less often, a physical person) who took the initiative and the risk of investing in the making of the database. Simply put, the sui generis database right belongs to the one who paid for compiling the database. It can, however, be subsequently transferred. Special rules may apply to public bodies, which, depending on the country, may not be able to claim the sui generis database right (the rationale behind it being that the investment comes from public money), or may not invoke it to restrict access to their documents — the solutions vary from one country to another.

What are the exclusive rights of holders of the sui generis database right? The holders of the sui generis database rights have exclusive rights to prevent extraction and re-utilisation of substantial parts of their databases. Extraction means « transfer to another medium » (copying); re-utilisation means making available to the public (sharing). « Substantial part » is usually interpreted as around 10% of the whole database (which, in case of a huge database, can be quite a lot of data). The exclusive rights do not affect extraction and re-utilisation of non-substantial parts, so a small part (or an individual piece of information) can be extracted or re-used by anyone (of course, repeated and systematic uses of non-substantial parts can also be prohibited if they amount to extraction or re-utilisation of a substantial part). Only extraction and re-utilisation of substantial parts (so: typically, more than 10%) require authorisation (i.e. a license).

What is the term of protection? The protection lasts for 15 years upon the completion of the database. However, any subsequent substantial investment in the database extends the term for another 15 years, so a database that is systematically (at least once every 15 years) updated can in fact be protected ad vitam aeternam.

How to license the sui generis database right? The sui generis database right can either be licensed in a bespoke license (a license clause would resemble a copyright license, just with adapted vocabulary). Creative Commons licenses also cover the sui generis database rights, but only in their latest versions (4.0). This is the reason why previous versions of CC licenses (which, because of the American origin of the license, did not cover this right) should not be used to licenses language resources.