Study in support of the evaluation of Directive 96/9/EC on the legal protection of databases : executive summary.
Date: 2018-05-17
Institutions: Directorate-General for Communications Networks, Content and Technology
Subjects: copyright, cost-benefit analysis, data protection, data-processing law, database, directive (EU), economic analysis, free competition, information technology industry, intellectual property, national implementing measure, sample survey

Study in support of the 
evaluation of Directive 
96/9/EC on the legal 
protection of databases 

EXECUTIVE SUMMARY 

A study prepared for the European Commission 

DG  Communications  Networks,  Content  &  Technology 
by: 

 
 
 
 
 
 
 
 
 
 
 
 
 
        
 
 
This study was carried out for the European Commission by 

AUTHORS: 
Robbert Fisher 

Milica Misojcic 

Julien Chicot 

Alberto Domini 

(as a JIIP member) 

AUTHORS: 
Gabriela Bodea 

Kristina Karanikolova 

AUTHORS: 
Alfred Radauer 

Anna Gkogka 

María del Carmen Calatrava Moreno 

INDIVIDUAL EXPERTS: 
Lionel Bently 

Estelle Derclaye 

Internal identification 

Contract number: 30-CE-0875109/00-61  
SMART number 2017/0084 

DISCLAIMER 

By the European Commission, Directorate-General of Communications Networks, Content & Technology.  

The information and views set out in this publication are those of the author(s) and do not necessarily reflect 
the official opinion of the Commission. The Commission does not guarantee the accuracy of the data included in 
this study. Neither the Commission nor any person acting on the Commission’s behalf may be held responsible 
for the use which may be made of the information contained therein. 

ISBN 978-92-79-84027-2 

doi: 10.2759/28498 

© European Union, 2018. All rights reserved. Certain parts are licensed under conditions to the EU.  

Reproduction is authorised provided the source is acknowledged. 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Objectives of the Study 

The  Directive  96/9/EC  on  the  legal  protection  of  databases  (hereafter  Database 
Directive)  pursues  three  objectives:  the  harmonisation  of  database  protection 
across the Member States of the European Union, the promotion of investment in 
the  production  of  databases  with  a  view  of  fostering  the  international 
competitiveness  of  the  European  digital  industry,  and  the  safeguard  of  the 
balance  of  interests  between  database  users  and  database  makers.  The 
protection  of  the  intellectual  creativity  embodied  in  databases  is  provided 
through copyright (Article 3), while investment in the collection, verification and 
presentation  of  the  contents  of  database  are  protected  via  a  sui  generis  right, 
which allows the database maker to prevent any extraction and/or re-utilisation 
of substantial parts of those contents (Article 7).  

A first evaluation of the Database Directive was conducted in 2005. The current 
study  aimed  to  collect  facts  and  evidence  on  the  impact  of  the  Database 
Directive,  so  that  the  European  Commission  can  determine,  in  the  context  of  a 
new  REFIT  evaluation,  whether  the  Directive  still  fulfils  its  policy  goals  and 
whether  it  is  useful  in  view  of  the  most  recent  technological  developments  and 
the emerging data economy.  

In  the  current  context,  it  seems  that  the  Database  Directive  does  not  apply  to 
the  databases  generated  with  the  means  of  machines,  sensors  and  other  new 
technologies (such as the Internet of Things or artificial intelligence). In fact, the 
generation  of  these  databases  is  closely  interlinked  with  the  creation  of  their 
content (i.e. data). However, case law indisputably excludes investments in data 
creation from the scope of the sui generis right. The Study nevertheless explores 
what  the  impacts  of  a  reversing  jurisprudence  would  be.  A  legal  and  economic 
analysis  helps  determine  whether  these  newly  generated  databases  would  need 
protection,  if  so,  whether  the  current  sui  generis  right  and  database  copyright 
would be sufficient, and whether the Database Directive would contribute to the 
competitiveness  of  the  European  companies  in  the  current  context  of  the  fast-
growing data economy. 

An online survey, in-depth interviews with database users, makers and experts, 
and a workshop, in addition to the public consultation conducted by the European 
Commission, provided the evidence that inform the economic and legal analyses 
of  the  outputs,  outcomes  and  impacts  of  the  Database  Directive.  The  current 
study  also  examines  the  Database  Directive  in  the  context  of  the  broader  data 
economy and the Data Economy Package.  

Considerations on the performance of the Database Directive in relation 
to its objectives 

The effectiveness of the sui generis right, as a means to stimulate investment on 
databases,  remains  unproven  and  still  highly  contested.  In  consequence,  highly 
vocal stakeholders and commentators have proposed its abolition.  

However,  most  of  the  database  makers  who  participated  in  the  workshop 
organised  in  the  context  of  the  Study  reported  that  it  is  an  effective  means  to 
protect databases which is often used alongside other means of protection, such 
as contractual terms, copyright and technological measures.  

1 | P a g e  

 
The  legal  analysis  reveals  nevertheless  that  a  number  of  provisions  in  the 
Database Directive are unclear. The views of stakeholders as to how they might 
be  changed  are  highly  polarised.  These  provisions  relate  to  the  notion  of 
'substantial' investment; the protection of investment in obtaining, verification or 
presentation of data (as opposed to investment in data creation); the concepts of 
'substantial' and 'insubstantial' extraction and re-utilisation; the articles 8(2) and 
8(3)  relative  to  the  rights  and  obligations  of  lawful  user;  and,  the  term  of 
protection  (the  makers  favouring  a  term  longer  than  15  years,  while  users 
arguing that it is currently too long and not adapted with the new technologies). 

Like  other  intellectual  property  rights,  the  sui  generis  right  raises  the  issue  of 
ensuring a balance between the interests of database makers and those of users. 
Some  academic  experts  argue  that  the  sui  generis  right  provides  a  better 
balance than contractual terms, as the latter are often used to limit the rights of 
lawful  users.  This  opinion  is  not  shared  by  database  users  and  producers  of 
databases  meant  to  be  publicly  accessible,  who  claimed  that  the  sui  generis 
hampers the free flow of data.  

Even  though  all  types  of  stakeholders  find  benefits  in  the  use  of  contracts  to 
protect  databases  (either  to  complement  or  waive  the  sui  generis  right),  most 
consider  that  the  Ryanair  case  has  a  negative  impact  –  though  yet  barely 
perceptible.  They  consequently  call  for  reversing  the  Ryanair  case.  Database 
users  and  experts  argue  indeed  that  this  case  law  affects  the  balance  between 
the  interests  of  database  makers  and  those  of  database  users  and  that  it  may, 
for instance, prevent the re-use of data for scientific purposes.  

Analysis of the costs and benefits induced by the Database Directive 

The costs and benefits of the Database Directive are mainly evaluated based on 
the responses to the dedicated questions  in the  Study survey.  Each category of 
stakeholders  was  asked  about  the  costs  and  benefits  experienced  from  the  sui 
generis right. 

  Database users have experienced rather low economic costs and moderate 
legal benefits mostly related to increased certainty as to the legality of use 
of databases (leading to a reduction of legal costs); 

  Database user-makers experienced very low benefits from the sui generis 
right  and  mostly  in  relation  to  better  legal  certainty.  Similarly,  they 
incurred only low economic costs; 

  Database makers represent the category of stakeholders for whom the sui 
generis  right  induced  the  most  benefits.  These  benefits  consist  mainly  of 
improved  legal  certainty  and  better  protection  of  databases  against  their 
unauthorised use by third parties. Around one third of respondents did not 
experience any additional cost from the sui generis right.  

In conclusion, most stakeholders have experienced low, if any, benefits from the 
Database  Directive  except  in  terms  of  improved  legal  certainty.  However,  the 
associated  costs  have  not  been  significant  either.  The  Database  Directive  could 
therefore be assessed as providing a relatively good cost/benefit outcome for the 
consulted  stakeholders.  The  cost/benefit  impact  of  the  Directive  in  the  broader 
data economy context remains nevertheless unknown.  

Furthermore, the influence of the sui generis right, at the macroeconomic level, 
on  levels  in  investments  and  on  European  competitiveness  is  similarly,  hardly 

2 | P a g e  

 
measurable.  From  the  responses  to  the  survey,  it  appears  that  the  sui  generis 
right did not have a positive effect on the decision of database makers to invest 
in the collection and generation of data, in setting up databases or verifying their 
content. A large share of database users who answered the questionnaire are still 
unaware  or  unfamiliar  with  the  Database  Directive  and  may  not  behave 
accordingly. This lack of familiarity may lead to unintentional infringement of the 
sui generis right and copyright. Because database makers have consequently no 
guarantee  that  these  means  of  protection  will,  in  consequence,  effectively 
prevent  extraction  and/or  re-utilisation  of  substantial  parts  of  their  database 
content,  many  of  them  are  reluctant  to  make  the  necessary  investments  to 
benefit from them.  

The Database Directive in the current legal and economic contexts 

Stakeholders  do  not  agree  on  the  overall  consistency  between  the  different 
means  of  database  protection.  For  some,  especially  among  commercial 
publishers, the sui generis right is valuable and should therefore be retained, as 
it is preferable to the ‘patchwork’ approach that they have to take to protect their 
investments  outside  the  European  Union.  However,  in  contrast,  many  database 
users,  including  library  and  archives,  and  public  sector  and  community-driven 
database  producers  consider  the  sui  generis  right  as  an  additional  and 
unnecessary layer of protection.  

The legal analysis highlights the need for harmonisation between the sui generis 
right and unfair competition law, as the Unfair Commercial Practices Directive is 
not enough in this respect. Furthermore, many national courts do not apply the 
spirit  of  the  Database  Directive  by  allowing  the  cumulation  of  the  sui  generis 
right with legal protection against parasitism (and free riding).  

Concerns  were  raised  about  the  Database  Directive  providing  an  outdated  legal 
framework that is no longer in line with the last technological developments and 
with  the  new  activities  of  the  database  industry.  Participants  in  the  workshop 
organised in the context of the Study reported, for instance, that the provisions 
of  the  Database  Directive  do  not  account  for  the  following  developments: 
extended  and  intensive  use  of  the  internet  and  increasing  economic  value  of 
data;  distinction  between  efforts  devoted  to  different  database-related  tasks 
(e.g.  data  creation,  collection,  arrangement,  update,  maintenance,  publication); 
aggregation  of  data  and  big  data;  automatic  data  generation;  and  advanced 
computational methods for analysis, information and decision making. However, 
the  Fixtures  Marketing  and  British  Horseracing  Board  decisions  of  2004  address 
in  a  way  the  problem  of  data  thereby  generated  and  their  consequence  on 
competition  by  excluding  investments  in  data  creation  from  the  scope  of  the 
protection  under  the  sui  generis  right  and  therefore  avoid  ‘sole  source  data 
situations’.  It  is  unclear  whether  such  data  can  also  be  said  to be  recorded  and 
the  status  of  recorded  data  is  unclear  under  these  decisions.  Therefore,  a 
clarification of the status of recorded data would be welcome. 

The  protection  of  investments  in  data  creation  is  a  point  of  disagreement 
between  the  different  stakeholders.  While  database  makers  want  to  have  such 
investments protected, users do not want any change to the European case law 
that includes investments in creation of data within the scope of the sui generis 
right.  This  issue  should  draw  even  more  the  attention  of  the  European 
Commission,  as  the  recent  changes  in  the  database  industry  increased  its 

3 | P a g e  

 
relevance. Indeed, the development of the open source model has led to a shift 
of investments for the creation of database to investments in the data collection 
and  curation  tasks.  The  legal  analysis,  however,  does  not  contend  that  the 
distinction  between  data  creation  and  data  collection  is  legally  problematic 
enough  to  be  revised  and  abandoned.  On  the  contrary,  it  is  increasingly 
important  in  the  broader  data  economy  context  where  much  data  is  generated 
and should remain outside the protection of the Database Directive.  

The  Internet  of  Things,  Artificial  Intelligence,  algorithm-  and  sensor-generated 
data, Big Data are all gaining increasing economic importance. It is nevertheless 
unclear how they are regulated, e.g. whether the current definition of a database 
embraces  them,  and,  even  more  importantly,  whether  they  should  benefit  from 
protection  under  the  sui  generis  right.  These  new  technologies  indeed  raise 
questions  as  regards  to  who  makes  and  who  owns  the  database,  and  what 
‘substantial’  investments  are.  The  views  are  in  this  respect  very  polarised: 
database  makers  wish  a  protection  for  these  new  types  of  data  and  databases, 
whereas users and user-makers call for a right to access to the data. There are 
additional  concerns  that  the  Database  Directive  provides  an  extra  layer  of 
security  and  complexity  that  would  prevent  European  actors  from  grasping  the 
opportunities of new developments offered by text and data mining for instance. 
However,  this  may  be  soon  resolved  by  the  introduction  of  a  text-and-data 
mining  exception  in  the  Proposal  of  2016  for  a  Directive  on  copyright  in  the 
Digital Single Market (COM(2016) 593 final).  

The interactions of the Database Directive with other means of database 
protection and the latest technological developments 

While  harmonisation  of  database  protection  across  EU  countries  is  considered 
one of the main benefits of the Database Directive, the legal analysis reveals that 
its provisions could better align with those of other Directives (including those on 
Information  Society  and  Re-Use  of  Public  Sector  Information)  relevant  on  the 
same topic. 

There  is  still  a  lack  of  clarity,  among  stakeholders  and  in  the  literature,  as 
regards  to  whether  the  sui  generis  right  applies  to  publicly-funded  databases. 
Most  of  them  are  in  favour  of  excluding  these  databases  from  the  scope  of  the 
sui generis right. Similarly, problems of coherence also appear with open access 
policies and also with unfair competition law. 

The  provisions  of  the  Database  Directive  and  the  Directive  2001/29/EC  on  the 
harmonisation  of  certain  aspects  of  copyright  and  related  rights  in  the 
information  society  diverge  on  several  aspects.  For  instance,  the  exceptions  to 
copyright  for  databases  are  different  from those  to  copyright  in  other  works. In 
consequence,  experts  and  stakeholders  are  calling  for  harmonisation,  even 
though  most  of  the  EU  Member  States  have  not  adopted  special  definitions  of 
rights  for  databases  choosing  merely  to  apply  the  general  copyright  rules.  In 
addition  to  aligning  exceptions,  improved  coherence  might  be  achieved  in 
addition  by  aligning  the  definitions  of  rights  ('reproduction'  and  'distribution') 
with those in Articles 2-4 of the Information Society Directive (and thus making 
explicit the 'making available right'). 

The latest technological developments raised a number of questions in relation to 
their  interaction  with  the  Database  Directive.  For  instance,  it  is  still  uncertain 

4 | P a g e  

 
whether  the  Directive  applies  to  the  sensor-  or  machine-generated  databases. 
The Fixtures Marketing decision of the CJEU helps rule out the application of the 
sui  generis  right  to  sole  source  databases  by  making  the  distinction  between 
investments in data creation (non-eligible for protection) and investments in data 
collection  (eligible  for  protection).  However,  some  commentators  raise  doubt  as 
to the ability of this case law to prevent all potential occurrences, especially due 
to the latest technological advancements, of sole source databases and therefore 
monopolistic  situations.  They  therefore  suggest  revising  the  current  regime  of 
database  protection  with  the  introduction  of  compulsory  licensing.  The  ultimate 
objective of any revisions being to provide database makers with the protection 
they  need  to  grasp  fully  the  opportunities  of  development  in  the  context  of  the 
fast-growing data economy.  

Importance of a legal protection of databases at the European level 

The  harmonisation  of  the  legal  protection  of  databases  across  the  EU  Member 
States  is  regarded  as  one  of  the  main  (positive)  contribution  of  the  Database 
Directive.  The  cross-country  differences  that  remain  in  its  application  is 
nevertheless considered negatively, but, according to the response to the online 
questionnaire,  they  have  not  had  any  significant  impact  on  the  activities  of 
concerned businesses.  

Stakeholders  had  various  experiences  with  the  concept  of  database  maker,  so 
that  there  is  no  clear  picture  of  whether  it  would  deserve  to  be  clarified  or  not. 
However,  national  interpretations  of  the  concept  vary,  which  may  justify  an 
intervention at the European level for better harmonisation.   

Even  though  experts  claimed  that  the  Database  Directive  has  achieved  a 
harmonisation  of  the  originality  standard  for  copyright  protection  of  databases 
across the EU Member States, there is evidence that the national courts are still 
uncertain on how to apply it.  

The  concepts  of  copyright  'authorship'  and  'ownership'  do  not  seem  to  have 
created  major  problems  with  their  application.  However,  different  national  rules 
still co-exist, which  may justify an  intervention of the European Commission for 
further harmonisation in this respect.  

Possible reforms 

Considering the evidenced limited positive effects of the Database Directive, the 
European Commission should not overlook its abolition. Such a decision may not 
render the situation more legally uncertain than it is currently.  

Nevertheless,  if  the  European  Commission  decides  on  keeping  the  Database 
Directive,  it  may  consider  amending  it,  such  that  it  contributes  better  to  the 
achievement of its objectives in the current legal and economic context. 

The  definition  of  a  database  given  by  the  Database  Directive  does  not  cause 
problems  to  most  stakeholders.  However,  its  clarity  could  be  improved.  An 
amendment  in  this  Directive  will  need  to  consider  whether  or  not  the  scope  of 
the definition should be narrowed, especially in the context of the data economy 
and  the  Data  Economy  Package.  The  European  Commission  may  nevertheless 
consider  accompany  such  a  change  with  revisions  to  other  provisions:  a  wider 

5 | P a g e  

 
definition  with  tighter  provisions,  or  a  narrower  definition  with  restricted 
contractual freedoms. 

The notion of ‘substantial’  investment  is one  of the most problematic provisions 
of  the  Database  Directive,  with  polarised  positions  among  stakeholders.  Any 
amendment to this provision would need to be in line with its rationale: that is, 
to  limit  the  protection  of  databases  to  those  databases  that  would  not  be 
produced  in  the  absence  of  legal  protection.  Therefore,  the  problem  with  the 
substantiality threshold is not that it exists, but where it lies and the associated 
uncertainty.  In  consequence,  were  the  European  Commission  decide  to  amend 
the  Database  Directive,  it  may  be  recommended  to  consider  identifying  shared 
standards in this respect and thereby instilling legal certainty. 

Similarly,  most  stakeholders  find  that  the  concepts  of  ‘substantial’  and 
‘insubstantial’ extraction and re-utilisation leading to infringement of sui generis 
right  are  not  clear  enough.  The  uncertainty  surrounding  the  related  threshold 
may  justify  an  extension  of  the  exceptions  regime  (in  Article  9),  which  would 
furthermore  gain  more  sense  and  would  be  more  effective  in  creating  a  level 
playing field if they were mandatory. The European Commission may additionally 
want  to  consider  aligning  the  exceptions  listed  in  the  Database  Directive  with 
those in the Information Society Directive (Article 5).  

The  European  Commission  may  want  to  consider  in  this  regard  shortening  the 
term of protection to five years and allow renewal of the protection ad infinitum, 
as  long  as  registration  and  deposit  are  required.  Database  users  would  be 
guaranteed  the  access  to  the  deposit  of  the  old  databases  that  were  made 
publicly available.  

There is a lack of clarity regarding whether the sui generis right can be waived in 
a  CC0  license  or  any  contract  for  that  matter.  The  Database  Directive  could 
therefore  be  revised  to  include  such  provision  and  provide  a  mechanism  for 
waiving  the  sui  generis  right  in  order  to  avoid  problems  with  interoperability 
between licences.  

An important issue related to the overall coherence of the Database Directive  is 
the harmonisation of the sui generis right with unfair competition. The European 
Commission  may  either  want  to  consider  keeping  this  means  of  database 
protection  but  state  in  the  Database  Directive  that  it  replaces  slavish 
imitation/parasitism.  Alternatively,  the  sui  generis  right  might  be  abolished  and 
the  slavish  imitation/parasitism  harmonised.  The  latter  option  may  however  be 
costlier than the former, because of the high variation of national interpretations 
of slavish imitation/parasitism. 

An amendment to the Database Directive for avoiding the sui generis right being 
merely  an  additional  and  unnecessary  layer  of  database  protection  is  the 
introduction  of  a  registration  requirement.  The  database  makers  who  seek 
protection  via  the  sui  generis  right  would  thereby  make  clear  that  they  are 
claiming such a right. The European Commission may want to consider such  an 
amendment, as it could meet concerns about uncertainty and lack of information, 
as  well  as  ensuring  that  the  sui  generis  right  is  better  targeted  (towards  its 
primary objective) so that it is available only to those who need it. However, to 
the  extent  that  many  stakeholders  and  experts  involved  in  the  study  did  not 
have views about this option, it would be useful to develop further the models of 

6 | P a g e  

 
registration  and  notice  that  might  be  used,  and  further  explore  the  advantages 
and disadvantages of each.  

The  exclusion  of  investments  in  data  creation  from  the  protection  via  the  sui 
generis right by the Court of Justice of the European Union (CJEU) in its Fixtures 
Marketing  and  British  Horseracing Board  decisions  may  be  interpreted  as  a  way 
to  avoid  ‘sole  source  data  situations’,  likely  to  lead  to  monopolistic  positions. 
However,  the  emergence  and  increasing  economic  importance  of  big  data  and 
sensor-  and  machine-produced  data  renew  concerns  with  the  effect  of  the 
Database  Directive  on  competition,  as  the  aforementioned  case  law  may  not 
provide  a  sufficient  solution  in  this  respect.  The  European  Commission  may 
therefore  want  to  continue  tracking  the  effects  of  the  Database  Directive  on 
competition  and  to  consider  again  the  introduction  of  'compulsory  licensing' 
requiring the owners of exclusive rights to offer, in circumstances to be specified, 
licences that will permit third parties to carry out acts falling within the exclusive 
right.  

In  conclusion,  the  rapid  and  ongoing  technological  changes  raise  a  number  of 
legal  questions  that  would  become  particularly  problematic  if  the  current  case 
law  excluding  machine-  and  sensor-generated  databases  from  the  scope  of  the 
sui  generis  right  is  reversed.  The  notions  of  database  maker,  database  owner 
and  substantial  investments  and  the  status  of  recorded  and  created  data  would 
need to be clarified. If the European Commission decides to amend the Database 
Directive  to  provide  here  answers,  it  may  want  to  consider  carefully  which 
options  are  the  most  appropriate  to  keep  ensuring  and  improving  the 
competitiveness  of  the  European  (digital)  industries  while  safeguarding  the 
balance  between  the  respective  interests  of  database  users  and  database 
makers.  

7 | P a g e  

 
 
 
European Commission 

Study  in  support  of  the  evaluation  of  Directive  96/9/EC  on  the  legal 
protection of databases – Executive Summary 
Luxembourg, Publications Office of the European Union 

2018 – 7 pages  

ISBN 978-92-79-84027-2 

doi: 10.2759/28498 

 
 
 
 
 
 
 
 
doi: 10.2759/28498              ISBN 978-92-79-84027-2