12 December 2005

Database Rights: Commission Evaluation - Talk about Faint Praise

Art 16 (3) of the Databases Directive (Directive 96/9/EC of 11 March 1996 on the legal protection of databases OJ L 077 , 27/03/1996 P. 20 - 28) requires the European Commission to submit a report on the application of the Directive, particularly the application of the sui generis right, including arts 8 and 9, and especially whether the application of that right has led to abuse of a dominant position or other interference with free competition which would justify appropriate measures being taken, including the establishment of non-voluntary licensing arrangements to the Council and Parliament before the end of the third year and subsequently every 3 years after that. Where necessary, the Commission has to submit proposals for adjustment of the directive in line with developments in the area of databases.

The Commission has published its evaluation today and invited the public to comments on its work by 12 March 2006. I have only had a chance to skim through it but my preliminary view is that it is a long way short of a ringing endorsement of the legislation. Significantly, the evaluation concluded that the economic impact of the “sui generis” right on database production was unproven although a survey of the database publishing industry produced generally favourable responses. I have always been sceptical of the value of database right though I have used it to obtain interim injunctions in departing employee cases that I might not have got had I relied on the law of confidence alone and I have also used it in licensing.

Interestingly, no other major economy outside the Europe has followed this lead so far as I am aware. There has been the odd bill presented to the US congress but there has never been much appetite for sui generis protection. There is no requirement under TRIPs. Art 10 (2) requires member states to protect "compilations of data or other material, whether in machine readable or other form, which by reason of the selection or arrangement of their contents constitute intellectual creations" but the article continues that such protection shall not extend to the data or material itself.

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