On the treatment of the sui generis database rights in Version
3.0 of the Creative Commons licenses.
Background:
Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal
protection of databases (the "Database Directive") created a new basis for the protection of
databases ("sui generis database protection") not previously recognized under copyright law. The
database directive has by now been implemented by the 25 member states of the EU (plus someof the countries such as Norway that are part of the European Economic Area - EEA). Outside ofEurope there is no sui generis protection of Databases. In some countries (for example Germany)
the database directive has been implemented as part of the national copyright act, while others(such as the Netherlands) have chosen to implement via a separate act (in this case the databaseact).
The lawmakers of the European Union decided that in order to provide greater
protection to collections of information they should have a unified legal protection fordatabases. To this end, they created a sui generis right called database right. The
database right lasts for 15 years under this regime, but can be extended if thedatabase is updated. Database rights prevent copying of substantial parts of adatabase (including frequent extraction of insubstantial parts). However unlike
copyright the protection of the database right is not over the form of expression of
information but of the information itself [source: en.wikipedia.org/wiki/Database_rights].
Prior to Version 3.0, some localized and translated versions of the Creative Commons licenses(Belgium, Netherlands, France and Germany) contained references to national legislation passed
pursuant to the Database Directive, by defining a "work" to include databases protected by theselaws. Most other European CC licenses simply did not mention database rights at all. This situation
was identified as one of the issues in need of harmonization as part of the upgrade cycle to version
3.0. As this problem was identified at a relatively late point in the upgrade cycle it was not includedin the public consultation process that preceded the launch of the 3.0 licenses.
At this point some project leads have expressed the view that the EU sui generis rights may be sobroad that the CC licenses are not complete (or exercisable) in practical applications (particularlyin internet collections) without addressing them (without this the licensor of these works would still
hold some exclusive rights in the works they intended to license).
On the other hand, database licensing is particularly problematic in pure data contexts (i.e.,beyond the scope of copyright), and in the past, CC (through Science Commons) had decided torefrain from creating data licenses. CC licenses that include the sui generis database rights areespecially problematic from the perspective of Science Commons as they pose the danger that thesui generis protection of databases could 'be exported' to a jurisdiction without sui generis
protection of databases through the use of CC licenses for works that qualify for protection underthe various national implementations of the Database Directive. From the perspective of Science
Commons this made CC licenses that define 'works' to include databases protected by the national
implementations of the Database Directive unsuitable for use in the scientific context.

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Solution:
This meant that in order for CC licenses to be fully functional in European jurisdictions thedatabase rights need to be included, while at the same time the inclusion of these rights
disqualified them for use in scientific context. In order to overcome this blockade three principles
have been established:
1. Existing Legislation: Sui generis database rights should only be included in localizations
where the country has enacted legislation to implement database protection.
2. Geographic Boundary: CC licenses that define 'works' to include databases protected by thenational implementations of the Database Directive should have territorial limitations regardingthese rights.
3. Unconditional Waiver: Those CC licenses that define 'works' to include databases protectedby the national implementations of the Database Directive should also waive the rights
obtained under the sui generis right (i.e not impose any of the CC license limitations orobligations (BY-SA-ND-NC). In other words, the sui generis license should not extend therestrictions of the CC license conditions to things (facts, ideas, information, etc.) not protectedby copyright.
As a result of consultations held between Creative Commons, Science Commons and European
CC project leads during the iSummit in Dubrovnik, it was agreed to harmonize the treatment of suigeneris database protection along the above general principles.
The goal of this proposal is not to expand the scope of protection for works under CC licenses, but
to harmonize the Creative Commons licenses across jurisdictions by waiving these protections tothe extent that they provide broader protections than otherwise available under general copyrightlaws (without the sui generis database protection).
The waiver also clarifies that restrictions and obligations such as attribution, non-commercial, noderivatives, and share-alike are not applicable to works, or to the exercise of particular rights, thatare only protected by virtue of sui generis database protection. In other words, the only basis forsuch restrictions and obligations will continue to be traditional copyright principles.

Implementation:
In the legal code of the licenses this is implemented in three different places (the examples below
show the English retranslation from the Dutch 3.0 licenses):
1. Inclusion of the sui generis database rights in the definition of work (section 1 of thelicenses). This section also contains wording that implements the above mentioned territorial
limitation:
Work: the work protected by copyright law that is offered under the terms of thislicense. For the application of this license a work must also be taken to mean aphonogram, a videogram or a (broadcast)programme within the meaning of theNeighboring Rights Act and a database within the meaning of the Databank Act,provided that such phonogram, videogram, (broadcast)programme or database isprotected by applicable law in Your jurisdiction."

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2. Unconditional waiver of the of the sui generis database rights under the national law
implementing the European Database Directive at the end of section 3 of the licenses:
Where the licensor is the owner of the sui generis database rights under the nationallaw implementing the European Database Directive, the licensor will waive this right.
3. Clarification of this waiver in section 4 (directly after the subsections covering the restrictions(SA, BY, NC) but above the subsections dealing with moral rights and collecting societies/
compulsory licensing schemes:
For the avoidance of doubt: The restrictions mentioned above (4(a) and 4(b)) do not
apply to those parts of the work considered to fall within the definition of a "work" under
this license exclusively because they meet the criteria of the sui generis database rightunder the national law implementing the European Database Directive.

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