Source: EURLEX
Language: en
Format: md

25 . 1 . 93 Official Journal of the European Communities No C 19 / 3

Opinion on the proposal for a Council Directive on the Legal Protection of Data Bases (*)

( 93 / C 19 / 02 )

On 18 June 1992, the Council decided to consult the Economic and Social Committee,
under Article 100a of the Treaty establishing the European Economic Community, on the
abovementioned proposal .

The Section for Industry, Commerce, Crafts and Services, which was responsible for preparing
the Committee 's work on the subject, adopted its Opinion on 6 November 1992 . The
Rapporteur was Mr Moreland .

At its 301st Plenary Session ( meeting of 24 November 1992 ), the Economic and Social
Committee adopted the following Opinion unanimously .

1 . Summary of the Commission 's proposal

1 . Summary of the Commission 's proposal 1.5 . For example, white pages telephone directories

are protected under the law of copyright in some Mem ­
ber States . If, as frequently happens, these white pages
directories are made available on CD-ROM as databas ­

1.1 . This Draft Directive is designed to protect elec ­
tronic of copyright databases and through partly through the medium a specific partly new of right the law to es ' original, the databases ' databases themselves ( because would there would not be be protected no intellec as ­
prevent ' unfair extraction ' from a database . tual creation in transposing them from paper to the

electronic medium ) and would not be the subject of the
unfair extraction right because, at least in some Mem ­
ber States, there would be copyright in the underlying
1.2 . Existing legislation in the Member States varies . materials .
The United Kingdom which has the largest share of the
Community market [ estimates vary but the UK share
may be a high 60 % with 37 % of UK production being 1.6 . Where the contents of a database which is made
used elsewhere in the Community ( see speech by D.R.
Warlock, London 7 May 1992 )], provides comprehen ­ publicly available are either :
sive copyright protection for databases and most datab ­
ases qualify for protection . In Spain, databases are

a ) unobtainable from any other source ; or

protected as such and there is an elaborate definition of
precisely what qualifies as a database . In other Member
States in need the of level clarification of protection . is less and in some cases b ) made available by a public body under a duty to

1.1 . This Draft Directive is designed to protect elec ­
tronic databases through the medium partly of the law
of copyright and partly through a specific new right to
prevent ' unfair extraction ' from a database .

1.6 . Where the contents of a database which is made
publicly available are either :

a ) unobtainable from any other source ; or

b ) made available by a public body under a duty to

gather and disclose information,

extraction of such contents must be licensed on fair and
reasonable terms, but the proposal does not state how
the ' fair and reasonable terms ' should be determined .

1.3 . In this proposal, a database must be electronic extraction of such contents must be licensed on fair and
to be protected at all . To enjoy copyright protection it reasonable terms, but the proposal ' does not state how
must also be ' original ', that is, its ' selection or arrange ­ the ' fair and reasonable terms should be determined .
ment ' must constitute the author 's own intellectual
creation . It is the selection or arrangement which must
be original, not the contents of the database . 1.7 . The unfair extraction right lasts for ten years
( in contrast to the copyright in a database which quali ­
fies for copyright protection, which lasts for at least 50
1.4 . The Commission does provide some protection years pma ).
for databases that are not ' intellectual creation ' ( i.e.
often referred to as ' sweat of the brow '). As regards
the contents of a database, there is an unfair extraction
right which permits the maker of a database to prevent 2 . General comments
others from making extracts from the database for
commercial purposes without the maker 's consent . This
applies whether or not the database itself is protected
by copyright but does not apply if the contents of the 2.1 . Although the Committee advocates changes in
database are themselves protected by copyright . the Directive, it welcomes the Commission 's initiative

2 . General comments

by copyright but does not apply if the contents of the 2.1 . Although the Committee advocates changes in
database are themselves protected by copyright . the Directive, it welcomes the Commission 's initiative

on this subject in order to ensure that the Community
has a strong database industry, able to compete against
its competitors in third countries . The Committee
believes that in assessing this proposal the Council
(!) OJ No C 156, 23 . 6 . 1992, p. 4 . should keep as its paramount objective the need for a

No C 19 / 4 Official Journal of the European Communities 25 . 1 . 93

strong database industry . Consequently, examination 2.5 . The Committee believes that the Council should
should focus on ensuring that the legal protection envis ­ consider the following alternatives .
aged leads to this objective and, equally, on the extent
to which it does not hinder new entrants to the market .
The Council should resist being sidetracked into a 2.6 . One choice would be for the unfair extraction
debate on legal philosophies which underlie the Direc ­ right to be removed from the draft Directive as a
tive, particularly on the subject of ' originality '. separate right and that a right to prevent unfair extrac ­

tion be inserted as one of the restricted acts under the
copyright in a database . The Committee 's reasons for
this recommendation are as follows .

2.2 . The experience of the United Kingdom in
attracting a substantial database industry ( particularly
vis-a-vis the United States ) indicates that the develop ­
ment of a strong local database industry correlates with
a high level of intellectual property protection . Any
effective weakening of existing intellectual property
protection may cause the Community to run the risk
that potential database creators will look to third
countries ( e.g. Canada ) where protection may be
stronger, to create databases in future .

2.3 . In this context the proposed ' unfair extraction '
protection does have limitations in ensuring that the
database industry is strong .

a ) First, only if the contents themselves of a database
are not protected by copyright do EC nationals have
the benefit of protection .

b ) Secondly, the term of the right is too short . More

2.6.3 . It may be said that to include the unfair extrac ­
tion right as one of the rights of the copyright owner is
inconsistent with the philosophy that copyright protects
the rights of authors . However, the concept of copyright
as an economic right which is important in an industrial
context has already been accepted in the Software
Directive and the approach to copyright set out in the
Software Directive has been widely welcomed through ­
out the Community .

2.6.1 . The unfair extraction right is a sui generis
right . So far, in its proposals on the harmonization of
intellectual property questions, the Commission has
rejected the concept of new sui generis rights and the
Council has followed this approach in its decision ­
making . It should be noted in particular that the
Council followed this approach in respect of the recent
Directive on the Protection of Computer Programs ( the
' Software Directive '). This approach has also been
endorsed by this Committee in the past .

2.6.2 . It would be wrong to compromise on the
question of whether or not something should be protect ­
ed by allowing a measure of short-term intellectual
property protection with a compulsory licence . It is
preferable to take a decision on whether something
qualifies for protection and, if so, then to grant intellec ­
tual property protection of a high standard .

importantly, it is unclear as to when the term of context has already been accepted in the Software
either the unfair extraction right or the copyright Directive and the approach to copyright set out in the
The begins extent . Databases to which the are constantly term has being been ' updated restarted . ' Software Directive has been widely welcomed through ­

out the Community .

depends on whether a change is ' insubstantial ',
because an ' insubstantial ' change does not start the
term of protection running again . It will be difficult 2.7 . The second choice is to accept the unfair extrac ­
to judge objectively the concept of insubstantiality . tion right as a sui generis right, but should ensure that
it is as effective a right as it would be if it were a
restricted act under the copyright in the database . In

Thirdly, the borderline between a database from other words, the unfair extraction right should not be
intellectual creativity or ' sweat of the brow ' will be as limited as it is in Article 2.5 in respect of its term
difficult as ( and to expensive whether to define a ) distinction legal giving action rise is . to This important the begs risk the of . Databases extensive question, cation and should the of be compulsory the curtailed Community licensing . Granted 's laws provisions the ensuring increasing in fair Article sophisti compe 8.1 ­ ­

which others would like to copy commercially may tition, any misuse by its proprietors of this exclusionary

right can be dealt with by the application of those laws .

c ) Thirdly, the borderline between a database from
intellectual creativity or ' sweat of the brow ' will be
difficult to define giving rise to the risk of extensive

( and expensive ) legal action . This begs the question
as to whether a distinction is important . Databases,
which others would like to copy commercially may
have involved much effort and expense without
meeting the originality criteria . Yet, they would
only be protected by the limited unfair extraction
right .

3 . Specific comments

2.4 . Consequently, the Committee believes that the 3.1 . Preamble
unfair extraction right may prove inadequate in provid ­
ing the protection needed for a strong Community
database industry and for those whose efforts need The Committee welcomes the practice of numbering
protection against copying . paragraphs in the Preamble but wonders if is really

25 . 1 . 93 Official Journal of the European Communities No C 19 / 5

necessary to have 40 paragraphs of often repetitious
wording .

3.2 . Article 1.1

The draft is confined to ' electronic ' databases . The

Committee is concerned that this will mean that differ ­
ent legal regimes will apply to the same database if it
is stored both electronically and otherwise . This would
not only complicate the law but could lead to undesir ­
able practical consequences .

underlying works which make up a database, rather
than relating to rights in databases themselves . In the
opinion of the Committee this is something which
should await the harmonization of the general law of
copyright .

3.8 . Article 5

The exclusive rights are substantially the same as in the
Directive on the protection of computer programs . This
is the correct approach .

3.3 . Article 1.4

3.9 . Article 7

The use of the phrase ' insubstantial changes ' as a means
of defining when a database becomes a new ' original '
database for the purposes of the term of protection

( Article 9.2 ) is unsatisfactory . It is difficult to imagine
changes made to the selection or arrangement of the
contents ( as opposed to the contents themselves ) which
would be insubstantial .

3.4 . Article 2.1

It may be appropriate to extend the exceptions referred
to in Article 7.1 to cover the reporting of, for example,
current affairs and other exceptions normally made to
the exclusive rights of the copyright owner in the laws
of most Member States .

3.10 . Article 8.1

The significance of the reference to the Berne Conven ­ It may be appropriate to make it clear that the compul ­
tion is that by protecting databases in this way Member sory licensing provisions under the unfair extraction
States will be obliged to protect databases emanating right ( if it is considered appropriate to have compulsory
from other countries of the Convention ( in particular, licensing at all, which would not be permissible if the
the USA ). The same would also be true of the unfair unfair extraction right were part of the general law of
extraction right if it were made a restricted act under copyright ) only apply to the right created by Article 2.5
the copyright in the database . However, that is not, in and not to the copyright ( if any ) in the database or its
the opinion of the Committee, a serious obstacle : this contents .
dichotomy between the rights granted in the USA and
the rights granted in certain Member States already
exists to no significant detriment to the database indus ­
3.11 . Article 8.2
try in the Member States concerned .

3.5 . Article 2.5

If the unfair extraction right survives as a sui generis
right it should be made clear that it applies to unauthor ­
ised access as well as to extraction and re-utilisation .

3.6 . Article 3.1

As in the case of the Software Directive, the draft
does not oblige Member States to protect computer ­
generated databases ( i.e. databases which have no
human author ). This is an issue which will have to be
addressed at some time .

3.7 . Article 4.1

This appears to require an alteration to the laws of the
Member States relating to the copyright in the

The definition of ' public body ' needs to be made more
precise, bearing in mind in particular the need to ensure
consistency in the type of activity which is to be the
subject of these provisions throughout the EC .

3.12 . Article 8.3

This is very vague . Is it intended that all Member States
should be required to set up ( if they do not have it
already ) a body equivalent to the UK Copyright Tri ­
bunal ? If so, the powers and duties of such a tribunal,
and the principles upon which it is to operate, should
be specified in much greater detail .

3.13 . Article 9.3

It is not clear why the specific term of ten years for this
right was selected . As stated in section 3.4 above, it

No C 19 / 6 Official Journal of the European Communities 25 . 1 . 93

does not appear that existence of the equivalent of an
unfair extraction right as part of the copyright in some
Member States has impeded the growth of the industry .

3.14 . Article 9.4

The definition of ' insubstantial changes ' in Article 1.4
refers to changes to the selection or arrangement of the
contents of a database . As currently drafted, this is not
an appropriate phrase to use in relation to the contents
themselves for the purposes of determining when the
unfair extraction right begins to run . Further, the Com ­
mittee would repeat its criticisms of this Article as set
out in section 2.3b ) above . The Committee suggests
that a more practical means of determining the start of
a fresh term of protection would be for each item of
data in the database to be electronically or otherwise
' date-stamped ' on its incorporation into the database .
Each piece of data would be protected for the appropri ­
ate term from the date of its date-stamp .

3.15 . Article 10

The Council should consider whether it is appropriate
to include a provision similar to Article 7.1 ( c ) of the

Done at Brussels, 24 November 1992 .

Software Directive, namely a requirement that devices
designed to circumvent technical protection of databas ­
es are unlawful .

3.16 . Article 11.3

This will mean that the Commission would negotiate
on this issue with third countries .

3.17 . Article 13

The date specified of 1 January 1993 is wholly unrealis ­
tic . This issue is not one that was covered in the 1985
Single Market White Paper .

3.18 . The Committee notes that the Council has, in
previous Directives, asked for regular reports on aspects
of copyright to be produced by the Commission . If
similar action is incorporated in the final Council
Decision on this proposal, the Committee looks for ­
ward to being an official recipient of such a report .

The Chairman

of the Economic and Social Committee

Susanne TIEMANN