Source: EURLEX
Language: en
Format: md

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| EVALUATION AND FITNESS CHECK (FC) ROADMAP | | | |
| title of the evaluation/fc | Evaluation of Directive on the legal protection of databases (REFIT) | | |
| lead dg – responsible unit | DG CONNECT – Unit I2 (copyright) | date of this roadmap | Q1 / 2017 |
| type of evaluation | Evaluation REFIT  Ex-post  Internal | planned start date  planned completion date | Q1 / 2017    Q1 / 2018 |
|  |  | Planning calendar | http://ec.europa.eu/smart-regulation/evaluation/index\_en.htm |
| This indicative roadmap is provided for information purposes only and is subject to change. | | | |

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| A. Purpose | |
| (A.1) Purpose | |
| The purpose of this evaluation is twofold: (i) to assess whether the Directive still fulfils its policy goals of providing protection of databases, including those not protected under copyright, while taking into account users' legitimate interests and (ii) to determine whether the Directive is still adapted in view of the development of new technologies, new business models based on data exploitation, and other emerging data-related issues, policies and legal frameworks on data access and ownership, stemming notably from the Digital Single Market (DSM) strategy.  The evaluation aims at delivering an assessment of the Directive in its entirety with a special focus on the sui generis protection of databases. This special focus is justified by the fact that, in practice, the sui generis protection of databases appears to have been more widely used than the copyright protection. The Commission carried out an evaluation of the Directive in 2005, which reported that the sui generis protection was deemed an important tool that led to a higher protection of databases [1](#footnote2) .  The 2005 evaluation reported that the sui generis protection was used in various fields by different companies, among which publishing companies [2](#footnote3) , news agencies, telecom companies, direct marketing companies, bioscience companies, mapping and cadastral societies, etc. Websites can also benefit from the sui generis protection. However, conditions of protection are not always met and websites for which the substantial investment was only made in the creation of data are excluded from the scope of protection [3](#footnote4) .  At the same time, the evaluation highlighted that the sui generis protection presented a range of issues. For instance it reported that the scope of the Database Directive was unclear (see D.2), that the economic impact on database production remained unproven and that further empirical analysis was necessary to conclude on the usefulness of the Directive in developing European database sales. In addition, as regards exceptions to the sui generis right, the consultation held in 2005 showed that academic researchers and libraries in particular considered that exceptions to the sui generis right were unclear and not sufficient to ensure full legal certainty for researchers.  Against that background, this evaluation will aim at gathering up-to-date evidence on the impact that the Directive has had on the ground – in particular after the 2005 evaluation – for both database makers and users. The evaluation will consider the relevance, coherence, effectiveness, efficiency and EU added value of the Directive's provisions and the legislation implementing it.  In the framework of the evaluation, a report on the application of the Database Directive in the different MS will be prepared. The evaluation will also rely on a public consultation to be launched this year (see infra, D.4).  The results of this evaluation will be used to identify measures to improve the Directive and its implementation on the ground and for further planning. | |
| (A.2) Justification | |
| 1. Legal obligation  In compliance with Art. 16.3 of the Database Directive, the Commission shall submit to the European Parliament, the Council and the Economic and Social Committee a report on the application of this Directive every three years. This provision specifies that the report should in particular examine the application of the sui generis right and whether the application of this right has led to abuse of a dominant position or other interference with free competition which would justify appropriate measures being taken. The latest evaluation took place in 2005.  2. The evaluation of the Database Directive is indicated in the REFIT programme 2017: http://ec.europa.eu/atwork/pdf/201621025\_refit\_scoreboard\_2016\_en.pdf  3. DSM and Data Economy package  Finally, in order to help building a European data economy, the Commission intends to address the barriers to the free movement of data inside the EU and explore a possible future EU framework for data access (questions of ownership of non-personal or anonymised data, access and transfer of such data). The evaluation of the Database Directive will be relevant in that respect as it will assess these issues, from a database protection perspective. | |
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| B. Content and subject of the evaluation | |
| (B.1) Subject area | |
| The Database Directive was adopted in 1996 to harmonise the protection of databases across MS and (as far as the protection of original databases is concerned) to comply with the EU obligations under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). This Directive provides for protection for two types of databases:      (i) Copyright protection for databases fulfilling the conditions of copyright protection (so-called 'originality threshold'); and  (ii) Sui generis protection for 'non-original' databases "which show that there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents" (Article 7). The aim was to protect investment in the creation of databases against parasitic behaviour and contribute to an increase of investments in information storage and processing systems.  Exclusive rights attached to copyright-protected databases are the following ones: reproduction, translation, distribution to the public and communication to the public rights. Rights attached to the sui generis protection are the following ones: extraction and re-utilisation rights.  Lawful users are allowed to perform certain acts necessary to access the contents of databases and facilitate the dissemination of information. There is also an optional list of exceptions (similar to some exceptions of Directive 2001/29). | |
| (B.2) Original objectives of the intervention | |
| The main objective of the Database Directive was to create a harmonised legal framework to establish the ground rules for the protection of a wide variety of databases in the information age. The Directive aimed in particular at eliminating the differences in the legal protection of databases (e.g. protection among MS as regards the protection of copyright-protected databases) and protecting those not reaching the 'originality' threshold giving rise to copyright protection. In doing so, the objective of the Directive was also to protect the investment of database makers. Another important objective of the Database Directive was to ensure the legitimate interests of users to access information compiled in databases. Ultimately, it was expected that the Database Directive would improve the global competitiveness of the European database industry and increase the European production of databases as compared to the US. | |
| (B.3) How the objectives were to be achieved | |
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| C. Scope of the evaluation/FC | |
| (C.1) Topics covered | |
| The evaluation will focus on the sui generis protection of non-original databases in all MS for the period from 2005 (date of the latest report on the Directive) till 2016 (as far as data are available for 2016). The evaluation will also cover the copyright protection of databases (articles 3 to 6). However, in view of the reasons explained above (see A1) and given that copyright protection of databases forms part of existing EU international obligations in WTO, the evaluation will mainly focus on the sui generis protection of databases (articles 7 to 10). The evaluation will cover these topics from the point of view of the relevance, effectiveness, efficiency, coherence and EU added value.  The evaluation will examine the implementation and the achievement of above-mentioned relevant articles compared to what was expected.  The geographical scope covers implementation in all 28 EU MS but also takes into account the relevant international context. | |
| (C.2) Issues to be examined | |
| The evaluation will notably assess the following topics: (i) To what extent the sui generis and copyright protection of databases has been used and deemed relevant, efficient and effective?; (ii) To what extent the protection offered under the Directive helped protecting investment in the creation of databases and constitutes an added-value for database makers? (iii) Is the balance between the protection of databases makers and the legitimate interests of lawful users achieved? (iv) Is the sui generis protection regime of databases fit for purpose in an increasingly data-driven economy? (v) What is the effect of this protection regime on access and (re-)use of databases financed from public budgets (e.g. scientific research results resulting from public funding)? (vi) What are the costs (e.g. administrative, regulatory) linked with the application of the Directive?  The evaluation will also assess whether some divergences in the interpretation of the Directive have emerged across MS, in particular as regards the sui generis right (for instance as regards the protection of 'spin-off' databases, i.e. databases that derive from a primary activity which is the creation of data). | |
| (C.3) Other tasks | |
| An external contractor will support the Commission in carrying out this evaluation (see point D.5). | |
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| D. Evidence base | |
| (D.1) Evidence from monitoring | |
| Since its adoption, the Commission published an evaluation of the Directive in 2005 (in compliance with Article 16.3 of the Directive). To provide evidence for this evaluaiton a study on the Implementation and application of the Directive has been carried out by an external contractor; it includes detailed national reports and is available here: http://ec.europa.eu/internal\_market/copyright/docs/databases/etd2001b53001e72\_en.pdf   The documents related to the evaluation of 2005 are available here: http://ec.europa.eu/internal\_market/copyright/prot-databases/index\_en.htm | |
| (D.2) Previous evaluations and other reports | |
| The 2005 evaluation report concluded that (i) there was no proven impact of the sui generis protection on the production of databases; (ii) repealing of the Directive or of the sui generis right would lead to considerable resistance by the EU database industry (iii) the Directive does not impose significant administrative or other regulatory burdens on the database industry or any other industries that depend on having access to data and information (iv) in 2004, the CJEU significantly curtailed the scope of the sui generis right [4](#footnote5) , pre-empting concerns that the right negatively affects competition. This report will be used as a basis to assess the improvements that have been achieved and the drawbacks that occurred since 2005. | |
| (D.3) Evidence from assessing the implementation and application of legislation (complaints, infringement procedures) | |
| The CJEU has rendered several judgments on the application of the Directive. These judgements concerned an array of topics, including (i) the scope of the protection (both copyright and the sui generis protection); (ii) the threshold for protection, in particular as regards the sui generis right; (iii) the scope of the extraction and re-utilisation rights provided for by the sui generis right; and (iv) the prohibition of systematic and repeated extraction or re-utilisation of insubstantial parts of a database.  In one of its most important judgments on the topic (C-203/02 and C-338/02), the CJEU introduced in 2004 the difference between the 'creation' and the 'obtaining' of data. Only the latter can be protected under the sui generis right. This has reduced the scope of the sui generis protection.  Finally, the CJEU has recently decided (Case C-30/14 Ryanair) that the maker of a non-protected database can lay down contractual restrictions preventing the use of his database. As regards protected databases, such contractual restrictions are prohibited in some cases to protect the interests of lawful users. The implications of this judgement for database makers and users will be analysed in the context of the evaluation.  This case law has an impact on the application of the Database Directive and the protection it provides. Impact of this case law will be assessed in the evaluation. | |
| (D.4) Consultation | |
| A 12-week public open consultation will be launched (Q2 2017). This public consultation will contain questions on the application of the Directive and above-mentioned topics (see C.2) to all relevant stakeholders (the database industry/ database makers, business relying on the exploitation of data, consumers, social media platforms that could sometimes be considered database makers, etc.). The Commission will also organise meetings with relevant stakeholders and, if deemed necessary, one or several workshops that would facilitate identifying issues to be included in the evaluation. | |
| (D.5) Further evidence to be gathered | |
| Further evidence is needed as to how the Database Directive has been implemented and applied in the different MS. To this end, besides the public consultation, an external study will be launched that will gather information on the national application of the Database Directive (including national case law), the problems that have arisen and the improvements that could be envisaged. A contractor will be also asked to assess, to the extent possible in a quantitative way, and to explain in a qualitative way, the effects the Directive had on the main objectives originally set, the evolution of EU database production in order to determine whether this sector of the EU economy has grown subsequent to the adoption of the Directive; and the impact of the relevant case law. | |
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| E. Other relevant information/ remarks |
| [e.g. comments on scope, further detail on communication activities or validation exercises] |

:   [(1)](#footnoteref2)
     See the evaluation conducted in 2005 – see infra, point D: 90% of the respondents knowing the sui generis right considered it important and 65% of them considered it offered a higher protection than the one offered before the adoption of the Database Directive.
:   [(2)](#footnoteref3)
     In their reply to the 2005 stakeholder consultation, the European Federation of Magazine Publishers estimated that the business and professional media industry invested 30% of their costs in the compiling and maintenance of databases.
:   [(3)](#footnoteref4)
     For instance, the Ryanair website was denied sui generis protection in several Member States ('MS') on the basis of national courts decisions.
:   [(4)](#footnoteref5)

     Cases C-46/02 (Fixtures Marketing Ltd v. Oy Veikkaus Ab); C-203/02 (The British Horseracing Board Ltd and Others v. William Hill Organisation Ltd); C-338/02 (Fixtures Marketing Limited v. AB Svenska Spel) and C-444/02 (Fixtures Marketing Ltd v. Organismos prognostikon agonon podosfairou AE -“OPAP”). The text of the 4 judgments can be found at: www.curia.eu.int .

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