Source: EURLEX
Language: en
Format: md

## **`COMMISSION OF THE EUROPEAN COMMUNITIES`**

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                           C0M(93) 464 final - SYN 393

                           Brussels, 4 October 1993

                 Amended proposal for a

                  COUNCIL DIRECTIVE

                 ON THE LEGAL PROTECTION

                    OF DATABASES

       (presented by the Commission pursuant to Article 149(3)
                  of the EEC-Treaty)

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                  -2
                EXPLANATORY MEMORANDUM

On 13 May 1992 the Commission presented to the Council its proposal for
a Council Directive harmonising the legal protection of databases.

The Economic and Social Committee delivered its opinion on the proposal

on 24 November 1992.

The European Parliament, consulted under the co-operation procedure,
discussed the proposal in detail in its Committees. On 21 June 1993 it
debated the report drawn up on behalf of the Committee on Legal Affairs
and citizens' rights by Mr Garcia Amigo, voting in support of the
proposed Directive as amended by Parliament in its Plenary Session of

23 June 1993.

The amended proposal for a Directive presented by the Commission is
intended to take into account the Opinion of the Parliament.

It contains one modification of substance and a number of amendments to

the original proposal which are intended to give greater precision and
clarity to the text.

The one modification of substance proposed by the Parliament is the
extension of the period of protection under the sui generis regime from
the ten years proposed by the Commission to fifteen years.

The modifications of a redactional nature include the following:

a) the term 'database' is to be clarified as including collections of

   data

b) the term 'owner of the rights' is to be used to cover both the
   author who owns any copyright right in the database and the maker
   of the database where there is a sui generis right in the contents
   of the database but no copyright in the selection or arrangement

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_**c")**_ **`the definition of`** **`"substantial"`** **`and`** **`"insubstantial"`** **`change`** **`in`**
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   relation to the term of protection is clarified

d) the term 'unauthorised' extraction is to be used throughout the
   text in place of 'unfair' extraction

e) the terms under which licences to use the contents of a database

   are to be issued are more clearly defined in the text.

The Commission accepts, in whole or in part and subject in some
instances to re-alignment of the various language versions, thirty two
out of thirty seven amendments of Parliament.

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(2)

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                    -3
The amendments which were not adopted by the Commission concerned:

a) a definition of database as including a "large number or amount of
   data or other material". This amendment was rejected because it
   would have given rise to problems of interpretation and is
   inconsistent with definitions proposed in the context of GATT Trips
   and on-going discussions in the World Intellectual Property
   Organisation on a possible Protocol to the Berne Convention.

b) a definition of 'author' of a database as the person "who undertook
   to and assumed responsibility for creating" the database. In the
   view of the Commission such an extensive definition of authorship
   should not be introduced into a Directive dealing with the legal
   protection of a specific type of work.

c) a definition of "non-commercial purposes" as including non-profit
   making purposes of teaching, research or humanitarian aid. The
   Commission, while accepting that private non-profit making
   activities including private research might fall within the scope
   of Article 8(5) of the original proposal, has doubts about the
   validity of the argument that teaching and humanitarian aid should
   fall under the heading of private use. The absence of profit is
   not the only criterion as to whether teaching or research is to be
   considered private or commercial since much commercial research
   could be said to be carried out without a direct profit-making
   objective, and teaching for private purposes would more correctly
   be defined as "private use".

d) additional language proposed to Article 6(1) stipulating that the
   lawful user of a database could be bound by contractual clauses
   reducing his ability to carry out acts necessary in order to use
   the database: any contractual restrictions which rendered the
   database unusable would in any event cause the contract to be of
   questionable validity.

e) additional restrictions on the use for private/personal purposes of
   the contents of the database under Article 8(5) of the original
   proposal: these restrictions would have obliged the user to quote
   the source of an insubstantial extract even for his own private

   purposes.

f) a requirement that databases should be protected against

   unauthorised extraction in accordance with the terms of

   international treaties. The Commission rejected this amendment as
   creating unnecessary ambiguity since the unauthorised extraction
   right is acknowledged in the report of the Legal Affairs Committee
   to be a sui generis right, subject to its own specific provisions
   as set out in the proposed Directive and not linked to any existing
   legal regime or international Convention, unlike the copyright
   protection of databases which is clearly linked in the proposal to
   that provided for internationally by the Berne Convention.

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                      _4_.

             COMMENTARY ON THE PREAMBLE

Amendment 2

This amendment was accepted since it expresses a non-binding and
qualified wish that database distributors would take into account the
specific requirements of users to use the contents of databases for
personal private purposes and the special needs of education and
research in concluding licence contracts with these groups of users.

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                    -5
              COMMENTARY ON THE ARTICLES

Structure of the amended proposal

In its amended proposal the Commission has re-grouped all the Articles
of the original proposal which relate to the copyright right in Chapter
II and those which relate to the sui generis right in Chapter III.
Although the Parliament's amendments did not specify this rearrangement, the report of the Legal Affairs Committee makes reference
to the complexity of the text as did the Opinion of the Economic and

Social Committee. The Commission has therefore taken the decision to

make the separation between copyright and sui generis provisions in
order to make the amended text more comprehensible. This separation
does not in any way change the substance of the proposal and is purely

redact ionaI.

Article 1

The addition of the word 'data' to the definition of database is a

useful clarification consistent with both the draft GATT Trips text and
the proposed text of the Protocol to the Berne Convention. Article
1(2) and 1(3) are deleted from Article 1 and re-located in Articles 10

and 11 respectively with some minor drafting clarifications.
Article (1)(4) is relocated in Article 9 (3).

The Parliament sought to clarify by a number of amendments, of which
some presented linguistic inconsistencies, that the "owner of the
rights in a database" can be the author or his successor in title in
the case of the copyright right, or the maker or his successor in title
in the case of the sui generis right, or a combination of both author
and maker if the database benefits from both copyright and sui generis
protection. These have inserted in a new paragraph 2.

Art icle 4

This amendment corresponds in spirit to the equivalent provision set
out in Article 3 of Directive 91/250 on the legal protection of
computer programs. It is not to be considered as implying any new
obligation on the Member States or as requiring any acts of compliance
with international agreements in respect of copyright.

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                    -6
Art icle 5

The order of paragraphs has been reversed to give first the rule and
second the limitation, and clarifications to the text on limitations
have been made to ensure that only those works or materials which are
not subject to copyright (references), which do not infringe copyright
in the pre-existing work (short abstracts) or which fall within Article
10 of the Berne Convention (quotations) can be incorporated into a

database without authorisation. It is not intended that a database

creator could incorporate abstracts written by third parties into his
database without authorisation if such abstracts are themselves subject
to copyright protection. The database creator may however make his own
abstracts of pre-existing works and incorporate them into his database
providing that the abstracts do not infringe the copyright in the preexisting work by being "substantial descriptions or summaries of the

content or the form".

Art icle 6

This change corresponds to the definition in Article 1 paragraph 2 of
the amended proposal.

Art icle 8

The amendments to this Article were accepted by the Commission as being
purely intended to give greater precision to the text. Since the
amendments of the Parliament speak only of "author" and "work", a new
paragraph 3 has been added which corresponds to the coverage of
neighbouring rights provided for in Article 7 of the original proposal
by the terms "rightholder" and "other rights".

Art icle 9

The amendment of the Parliament seeks to re-group in this Article all
of the provisions of the original proposal which dealt with the term of
copyright protection and the definitions of "substantial" and
"insubstantial change". The Commission accepted the need to clarify
the terminology and to define the starting point in time of the period
of protection of databases which are being constantly updated.

Art icle 10

The amendments of the Parliament to Article 2(5) aim at clarifying the
nature of the sui generis right and include the term "part or all of
the material" in the definition of the right and have been introduced
in a new Article 10(1). That right was then limited by Article 10(2)
and by Article 11. The Commission can accept these amendments since
they correspond to the spirit of the original proposal and do not
create rights in information as such.

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                    -7
Art icle 11

The amendments to this Article are largely clarifications of the
original text and have been accepted for the reasons set out above in
respect of Article 10. In particular, the clarifications in respect of
public bodies and their exclusive concessionaires, and the definition
of "publicly available" are considered useful precisions.

Paragraph 7 and 8 contain clarifications of "commercial purposes" and
"insubstantial part". To a large extent they represent language
already existing in the Commission's original proposal but incorporate
additional clarifications. Article 11(1) last sentence also applies to
Art icle 11(2).

Article 12

The amendments to this Article correspond in intention to the
amendments to Article 9 (on the term of copyright protection). These
amendments re-group existing definitions of when a period of protection
under the sui generis right arises in respect of constantly up-dated
databases and defines "substantial" and "insubstantial" changes. As to
the modification of the period of protection from ten to fifteen years
the Commission has accepted the argument that the increased period
corresponds better to the needs of industry to recover initial
investments in the creation of databases, and is more proportionate to
the term of 70 years for copyright protection provided for in the
proposal for a Council Directive COM(92)33 final - S Y N 395 on which a
Common Position of the Council was reached in July 1993.

Art icle 13

These changes are purely drafting improvements and have been accepted
by the Commission as such.

Art icle 15

The amendment to this Article correspond to the wish of the Parliament
that protection should be available for all databases in existence on
the date of entry into force of the Directive or created thereafter.
As there will be in all probability no electronic databases in
existence for which the period of copyright protection has elapsed,
there is not a problem of calling works which have fallen into the
public domain back into protection or extending the period of
protection under copyright.

Article 16

The Commission agrees to the later date of 1 January 1995 given that
the date set out in the original proposal has already passed. The
Commission also accepts that in this fast-moving area of technology it
is appropriate to review the contents of the Directive in due course.

```

Amended proposal for a

**COUNCIL DIRECTIVE** .

ON THE LEGAL PROTECTION

OF DATABASES

THE COUNCIL OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Economic
Community, and in particular Articles 57(2), 66, 100a thereof,

Having regard to the proposal from the Commission,

In cooperation with the European Parliament,

Having regard to the opinion of the Economic and Social Committee,

1. Whereas databases are at present not clearly
protected in all Member States by existing
legislation and such protection, where it exists, has
different attributes;

2. Whereas such differences in the legal protection
offered by the legislation of the Member States
have direct and negative effects on the
establishment and functioning of the Internal
Market as regards databases and in particular on
the freedom of individuals and companies to
provide on-line database goods and services on an
equal legal basis throughout the Community ;

whereas such differences could well become more

pronounced as Member States introduce new
legislation on this subject, which is now taking on
an increasingly international dimension;

3. Whereas existing differences having a distort!vc
effect on the establishment and functioning of the

Internal Market need to be removed and new ones

prevented from arising, while differences not at
the present time adversely affecting the
establishment and functioning of the Internal
Market or the development of an information
market within the Community need not be
addressed in this Directive;

4. Whereas copyright protection for databases exists
in varying forms in a number of Member States
according to legislation or case-law and such
unharmonized intellectual property rights, being
territorial in nature, can have the effect of

preventing the free movement of goods or services
within the Community if differences in the scope,
conditions, derogations or term of protection
remain between the legislation of the Member
States;

5. Whereas although copyright remains an
appropriate form of exclusive right for the legal
protection of databases and in particular an
appropriate means to secure the remuneration of
the author who has created a database, in addition
to copyright protection, and in the absence as yet
of a harmonized system of unfair competition
legislation or of case-law in the Member States,
other measures are required to prevent unfair
extraction and re-utilization of the contents of a

database;

6. Whereas database development requires the
investment of considerable human, technical and
financial resources while such databases can be

copied at a fraction of the cost needed to develop
them independently :

7. Whereas unauthorized access to a database and

removal of its contents constitute acts which can

have the gravest economic and technical

consequences;

8. Whereas databases are a vital tool in the
development of an Information Market within the
Community; whereas this tool will be of use to a
large variety of other activities and industries;

9. Whereas the exponential growth, in the
Community and worldwide, in the amount of
information generated and processed annually in
all sectors of commerce and industry requires
investment in all the Member States in advanced

information management systems;

10. Whereas a correspondingly high rate of increase in
publications of literary, artistic, musical and other
works necessitates the creation of modern

archiving, bibliographic and accessing techniques,
to enable consumers to have at their disposal the
most comprehensive collection of the
Community's heritage;

11. Whereas there is at the present time a great
imbalance in the level of investment in database

creation both as between the Member States

themselves, and between the Community and the
world's largest database producing countries;

10

12. Whereas such an investment in modern

information storage and retrieval systems will not
take place within the Community unless a stable
and uniform legal protection regime is introduced
for the protection of the rights of authors of
databases and the repression of acts of piracy and
unfair competition.

13. Whereas this Directive protects collections,
sometimes called compilations, of works or other
materials whose arrangement, storage and access
is performed by means which include electronic,
electromagnetic or electro-optical processes or
analogous processes;

14. Whereas the criteria by which such collections
shall be eligible for protection by copyright should
be that the author, in effecting the selection or the
arrangement of the contents of the database, has
made an intellectual creation;

15. Whereas no other criteria than originality in the
sense of intellectual creation should be applied to
determine the eligibility of the database for
copyright protection, and in particular no aesthetic
or qualitative criteria should be applied;

16. Whereas the term database should be understood

to include collections of works, whether literary,
artistic, musical or other, or of other material such
as texts, sounds, images, numbers, facts, data or
combinations of any of these;

17. Whereas the protection of a database should
extend to the electronic materials without which

the contents selected and arranged by the maker of
the database cannot be used, such as, for example,
the system made to obtain information and present
information to the user in electronic or non
electronic form, and the indexation and thesaurus
used in the construction or operation of the
database;

18. Whereas the term database should not be taken to

extend to any computer programme used in the
construction or operation of a database, which
accordingly remain protected by Council Directive
91/250 EEC;

**(3)**

**11**

19. Whereas the Directive should be taken as applying
only to collections which are made by electronic
means, but is without prejudice to the protection
under copyright as collections, within the meaning
of Article 2.5. of the Berne Convention for the

Protection of Literary and Artistic Works, (text of
Paris Act of 1971) and under the legislation of the
Member States, of collections made by other

means;

20. Whereas works protected by copyright or by any
other rights, which are incorporated into a
database, remain the object of their author's
exclusive rights and may not therefore be
incorporated into or reproduced from the
database without the permission of the author or
his successors in title;
21. Whereas the rights of the author of such works
incorporated into a database are not in any way
affected by the existence of a separate right in
the original selection or arrangement of these
works in a database;

22. Whereas the moral rights of the natural person
who has created the database should be owned

and exercised according to the provisions of the
legislation of the Member States consistent with
the provisions of the Berne Convention, and
remain therefore outside the scope of this
Directive;

23. Whereas the author's exclusive rights should
include the right to determine the way in which
his work is exploited and by whom, and in
particular to control the availability of his work
to unauthorized persons;

24. Whereas nevertheless once the rightholder has
chosen to make available a copy of the database
to a user, whether by an on-line service or by
other means of distribution, that lawful user must
be able to access and use the database, for the
purposes and in the way set out in the agreement
with the rightholder, even if such access and use
necessitate performance of otherwise restricted

acts;

25. Whereas if the user and the rightholder have not
concluded an agreement regulating the use which
may be made of the database, the lawful user
should be presumed to be able to perform any of
the restricted acts which are necessary for access
to and use of the database;

12

26. Whereas in respect of reproduction in the limited
circumstances provided for in the Berne
Convention, of the contents of the database by the
lawful user, whether in electronic or nonelectronic form, the same restrictions and
exceptions should apply to the reproduction of
such works from a database as would apply to the
reproduction of the same works made available to
the public by other forms of exploitation or
distribution;

27. Whereas the increasing use of digital recording
technology exposes the database maker to the risk
that the contents of his database may be
downloaded and re-arranged electronically without
his authorization to produce a database of
identical content but which does not infringe any
copyright in the arrangement of his database;

28. Whereas in addition to protecting the copyright in
the original selection or arrangement of the
contents of a database this Directive seeks to

safeguard the position of makers of databases
against misappropriation of the results of the
financial and professional investment incurred in
obtaining and collecting data by providing that
certain acts done in relation to the contents of a

database are subject to restriction even when such
contents are not themselves protected by copyright
or other rights;

29. Whereas such protection of the contents of a
database is to be achieved by a special right by
which the maker of a database can prevent the
unauthorized extraction or re-utilization of the

contents of that database for commercial

purposes; whereas this special right (hereafter
called "a right to prevent unfair extraction") is not
to be considered in any way as an extension of
copyright protection to mere facts or data;

30. Whereas the existence of a right to prevent the
extraction and re-utilization for commercial

purposes of works or materials from a given
database should not give rise to the creation of any
independent right in the works or materials
themselves;

13

31. Whereas in the interests of competition between
suppliers of information products and services, the
maker of a database which is commercially
distributed whose database is the sole possible
source of a given work or material, should make
that work or material available under licence for

use by others, providing that the works or
materials so licensed are used in the independent
creation of new works, and providing that no prior
rights in or obligations incurred in respect of those
works or materials are infringed;

32. Whereas licences granted in such circumstances
should be fair and non-discriminatory under
conditions to be agreed with the rightholder;

33. Whereas such licences should not be requested
for reasons of commercial expediency such as
economy of time, effort or financial investment;

34. Whereas in the event that licences are refused or
the parties cannot reach agreement on the terms to
be concluded, a system of arbitration should be
provided for by the Member States;

35. Whereas licences may not be refused in respect of
the extraction and re-utilization of works or

materials from a publicly available database
created by a public body providing that such acts
do not infringe the legislation or international
obligations of Member States or the Community
in respect of matters such as personal data
protection, privacy, security or confidentiality;

#### **•t**

36. Whereas the objective of the provisions of this
Directive, which is to afford an appropriate and
uniform level of protection of databases as a
means to secure the remuneration of the author

who has created the database, is different from the
aims of the proposal for a Council Directive
concerning the protection of individuals in relation
to the processing of personal data (OJ N° C 277,
5.11.1990, p.3.) which are to guarantee free
circulation of personal data on the basis of a
harmonized standard of rules designed to protect
the fundamental rights, notably the right to
privacy which is recognized in Article 8 of the
European Convention for the Protection of Human
Rights and Fundamental Freedoms; whereas the
provisions of this Directive are without prejudice
to the data protection legislation;

37. Whereas notwithstanding the right to prevent
unfair extraction from a database, it should still
be possible for the lawful user to quote from or
otherwise use, for commercial and private
purposes, the contents of the database which he is
authorized to use, providing that this exception is
subject to narrow limitations and is not used in a
way which would conflict with the author's normal
exploitation of his work or which would
unreasonably prejudice his legitimate interests;

38. Whereas the right to prevent unfair extraction
from a database may only be extended to
databases whose authors or makers are nationals

or habitual residents of third countries and to

those produced by companies or firms not
established in a Member State within the meaning
of the Treaty if such third countries offer
comparable protection to databases produced by
nationals of the Member States or habitual

residents of the Community;

15

38a. Whereas distributors of databases should

make appropriate provision in their contracts
as regards the unauthorised re-utilization of
the contents of the database by the lawful user
where such re-utilization is for strictly private
purposes or for the purposes of teaching or
research, provided such re-utilization is not
carried out for commercial purposes and does
not prejudice the exclusive rights of the maker
of the database to exploit that database;

39. Whereas, in addition to remedies provided under
the legislation of the Member States for
infringements of copyright or other rights,
Member States should provide for appropriate
remedies against unfair extraction from a
database;

40. Whereas in addition to the protection given under
this Directive to the database by copyright, and to
its contents against unfair extraction, other legal
provisions existing in the law of the Member
States relevant to the supply of database goods
and services should continue to apply,

HAS ADOPTED THIS DIRECTIVE

16

INITIAL COMMISSION PROPOSAI. AMENDED PROPOSAL SUBSEQUENT TO THE

EUROPEAN PARLIAMENT OPINION OF 23

JUNE 1993

CHAPTER I : DEFINITIONS

Article 1

Definitions

1. For the purposes of this Directive,

'database' means a collection of works or

materials arranged, stored and accessed by
electronic means, and the electronic materials
necessary for the operation of the database such
as its thesaurus, index or system for obtaining or
presenting information; it shall not apply to any
computer program used in the making or
operation of the database;

'right to prevent unfair extraction' means the right
of the maker of a database to prevent acts of
extraction and re-utilization of material from that

database for commercial purposes;

3. 'insubstantial part' means parts of a database
whose reproduction, evaluated quantitatively and
qualitatively in relation to the database from which
they are copied can be considered not to prejudice
the exclusive rights of the maker of that database
to exploit the database;

4. 'insubstantial change' means additions, deletions or
alterations to the selection or arrangement of the
contents of a database which are necessary for the
database to continue to function in the way it was
intended by its maker to function.

Article 1

Definitions

1. For the purposes of this Directive,

'database' means a collection of data, works or
other materials arranged, stored and accessed
by electronic means, and the materials
necessary for the operation of the database
such as its thesaurus, index or system for
obtaining or presenting information; it shall
not apply to any computer program used in
the making or operation of the database,

Deleted

[re-inserted 10(1)]

Deleted

[re-inserted 11(8)]

Deleted

[re-inserted 12(3)]

"Owner of the rights in a database means:

(a) the author of a database or

(b) the natural or legal person to whom the
author has lawfully granted the right to
prevent unauthorized extraction of
material from a database, or

(c) where the database is not eligible for
protection by copyright the maker of the
database.

17

Article 2

Object of Protection:

Copyright and Right to Prevent Unfair

Extraction from a Database

1. In accordance with the provisions of this
Directive, Member States shall protect databases
by copyright as collections within the meaning of
Article 2(5) of the Berne Convention for the
protection of Literary and Artistic works (text of
the Paris Act of 1971).

The definition of database in point 1 of Article 1
is without prejudice to the protection by copyright
of collections of works or materials arranged,
stored or accessed by non-electronic means, which
accordingly remain protected to the extent
provided for by Article 2(5) of the Beme
Convention.

A database shall be protected by copyright if it is
original in the sense that it is a collection of works
or materials which, by reason of their selection or
their arrangement, constitutes the author's own
intellectual creation. No other criteria shall be

applied to determine the eligibility of a database
for this protection.

4. The copyright protection of a database given by
this Directive shall not extend to the works or

materials contained therein, irrespective of
whether or not they are themselves protected by
copyright; the protection of a database shall be
without prejudice to any rights subsisting in those
works or materials themselves.

**CHAPTER** **11** **: COPYRIGHT**

Article 2

Object of Protection:

Unchanged

Unchanged

Unchanged

Unchanged

18

Member States shall provide for a right for the
maker of a database to prevent the unauthorised
extraction or re-utilisation, from that database, of
its contents, in whole or in substantial part, for
commercial purposes. This right to prevent unfair
extraction of the contents of a database shall

apply irrespective of the eligibility of that
database for protection under copyright. It shall
not apply to the contents of a database where
these are works already protected by copyright or
neighbouring rights.

Article 3

Authorship : Copyright

The author of a database shall be the natural

person or group of natural persons who created the
database, or where the legislation of the Member
States permits, the legal person designated as the
rightholder by that legislation.

2. Where collective works are recognized by the
legislation of a Member State, the person
considered by that legislation to have created the
database shall be deemed to be its author.

3. In respect of a database created by a group of
natural persons jointly, the exclusive rights shall be
owned jointly.

Where a database is created by an employee in the
execution of his duties or following the instructions
given by his employer, the employer exclusively
shall be entitled to exercise all economic rights in
the database so created, unless otherwise provided
by contract.

Deleted

[re-inserted 10(2)|

Article 3

Authorship

Unchanged

Unchanged

Unchanged

Unchanged

Article 4

Incorporation of Works or Materials into a
Database

1. The incorporation into a database of
bibliographical material or brief abstracts,
quotations or summaries which do not substitute
for the original works themselves 1 shall not require
the authorisation of the right owner in those
works.

2. The incorporation into a database of other works
or materials remains subject to any copyright or
other rights acquired or obligations incurred
therein.

Article 4

Entitlement to protection under copyright

Protection under copyright shall be granted to all
owners of rights, whether natural or legal persons,
who fulfil the requirements laid down in national
legislation or international agreements on
copyright applicable to literary works.

Article 5

Incorporation of Works or Materials into a
Database

The incorporation into a database of any
works or materials shall remain subject to the
authorisation of the owner of any copyright
or other rights acquired or obligations
incurred therein.

2. The incorporation into a database of
bibliographical references, abstracts (with the
exception of substantial descriptions or
summaries of the content or the form of

existing works) or brief quotations, shall not
require the authorisation of the owners of
rights in those workSj provided the name of
the author and the source of the quotation are
clearly indicated in accordance with Article
10(3) of the Berne Convention.

**20**

Article 5

Restricted Acts: Copyright

The author shall have, in respect of:

- the selection or arrangement of the contents of the
database, and

- the electronic material referred to in point 1 of
Article 1 used in the creation or operation of the
database,

the exclusive right within the meaning of Article 2(1)
to do or to authorize :

Article 6

Restricted Acts

The owner of the rights in a database shall have,
in respect of:

Unchanged

Unchanged

Unchanged

a) the temporary or permanent reproduction of the Unchanged
database by any means and in any form, in whole
or in part,

b) the translation, adaptation, arrangement and any Unchanged
other alteration of the database,

c) the reproduction of the results of any of the acts Unchanged
listed in (a) or (b),

d) any form of distribution to the public, including the Unchanged
rental, of the database or of copies thereof. The
first sale in the Community of a copy of the
database by the rightholder or with his consent
shall exhaust the distribution right within the
Community of that copy, with the exception of the
right to control further rental of the database or a
copy thereof.

e) any communication, display or performance of the Unchanged
database to the public.

Article 6

Article 7

Exceptions to the Restricted Acts Enumerated in
Article 5:

Copyright in the Selection or Arrangement

1. The lawful user of a database may perform any of
the acts listed in Article 5 which is necessary in
order to use that database in the manner determined

by contractual arrangements with the rightholder.

Exceptions to the Restricted Acts

Copyright in the Selection or Arrangement

Unchanged

**21**

2. In the absence of any contractual arrangements
between the rightholder and the user of a database
in respect of its use, the performance by the lawful
acquirer of a database of any of the acts listed in
Article 5 which is necessary in order to gain access
to the contents of the database and use thereof shall

not require the authorization of the rightholder.

The exceptions referred to in paragraphs 1 and 2
relate to the subject matter listed in Article 5 and
are without prejudice to any rights subsisting in the
works or materials contained in the database.

Article 7

Exceptions to the Restricted Acts in Relation to

the Copyright in the Contents

1. Member States shall apply the same exceptions to
any exclusive copyright or other rights in respect of
the contents of the database as those which apply in
the legislation of the Member States to the works or
materials themselves contained therein, in respect
of brief quotations, and illustrations for the
purposes of teaching, provided that such utilisation
is compatible with fair practice i

2. Where the legislation of the Member States or
contractual arrangements concluded with the
rightholder permit the user of a database to carry
out acts which are permitted as derogations to any
exclusive rights in the contents of the database,
performance of such acts shall not be taken to
infringe the copyright in the database itself
provided for in Article 5.

Unchanged

Unchanged

**Article 8**

Exceptions to the Restricted Acts in Relation to

the Copyright in the Contents

1. Member States shall apply the same
exceptions to any copyright or other rights of
the author of a work contained in a database
as those which apply in the legislation of the
Member States to that work, in respect of
brief quotations, and illustrations for the
purposes of teaching, provided that such
utilisation is compatible with fair practice, in
accordance with Article 10(3) of the Berne
Convention.

Where the legislation of the Member States or
contractual arrangements concluded with the
author of a work contained in a database

permit the user of that database to carry out
acts which are permitted as derogations to any
exclusive rights of the author of the work,
performance of such acts shall not be taken to
infringe the rights of the author of the
database laid down in Article 6.

3. The provisions of paragraphs (1) and (2)
above shall also apply in respect of owners of
neighbouring rights attaching to materials
contained in a database.

**22**

Article 8

Acts Performed in Relation to the Contents of

a Database - Unfair Extraction of the Contents

1. Notwithstanding the right provided for in Article
2(5) to prevent the unauthorised extraction and reutilization of the contents of a database, if the
works or materials contained in a database which is

made publicly available cannot be independently
created, collected or obtained from any other
source, the right to extract and re-utilise, in whole
or substantia] part, works or materials from that
database for commercial purposes, shall be
licensed on fair and non-discriminatory terms.

2. The right to extract and re-utilise the contents of a
database shall also be licensed on fair and non
discriminatory terms if the database is made
publicly available by a public body which is either
established to assemble or disclose information

pursuant to legislation, or is under a general duty
to do so.

3. Member States shall provide appropriate measures
for arbitration between the parties in respect of
such licences.

4. The lawful user of a database may, without
authorization of the database maker, extract and reutilize insubstantial parts of works or materials
from a database for commercial purposes provided
that acknowledgement is made of the source.

The lawful user of a database may, without
authorisation of the database maker, and without
acknowledgement of the source, extract and reutilise insubstantial parts of works or materials
from that database for personal private use only.

Deleted

[re-inserted 11(1)]

Deleted

[re-inserted 11(2)]

Deleted

[re-inserted 11(4)]

Deleted

[rc-inscrted 11(5)]

Deleted

[rc-inscrted 11(6)]

**23**

6. The provisions of this Article shall apply only to
the extent that such extraction and re-utilization

does not conflict with any other prior rights or
obligations, including the legislation or
international obligations of the Member States or
of the Community in respect of matters such as
personal data protection, privacy, security or
confidentiality.

**Article 9**

**Terms of Protection**

1. The duration of the period of copyright protection
of the database shall be the same as that provided
for literary works, without prejudice to any future
Community harmonization of the term of protection
of copyright and related rights.

2. Insubstantial changes to the selection or
arrangement of the contents of a database shall
not extend the original period of copyright
protection of that database.

Deleted

[re-inserted **1** 1(9)]

**Article 9**

**Terms of Protection**

1. The duration of the period of copyright
protection of the database shall be the same as
that provided for literary works.

2.(a) A substantial change to the selection or
arrangement of the contents of a database
shall give rise to the creation of a new data
base, which shall be protected from that
moment for the period recognised in paragraph
1 of this Article. Such protection shall not
prejudice existing rights in respect of the
original database.

(b) For the purposes of the term of protection
provided for in this Article 'substantial change'

means :

additions, deletions or alterations, which
involve substantial modification to the

selection or arrangement of the contents of a
database, resulting in a new edition of that
database.

3. (a) Insubstantial changes to the selection or
arrangement of the contents of a database
shall not entail a fresh period of copyright
protection of that database.

**24**

3. The right to prevent unfair extraction shall run as
of the date of creation of the database and shall

expire at the end of a period of 10 years from the
date when the database is first lawfully made
available to the public. The term of protection
given in this paragraph shall be deemed to begin on
the first of January of the year following the date
when the database was first made available.

Insubstantial changes to the contents of a database
shall not extend the original period of protection of
that database by the right to prevent unfair
extraction.

Article 10

Remedies

Member States shall provide appropriate remedies in
respect of infringements of the rights provided for in
this Directive.

Deleted

[rc-inscrted 12(1)|

(b) For the purposes of the term of protection
provided for in this Article, 'insubstantial
change' means :

additions, deletions or alterations to the
selection or arrangement of the contents of a
database which arc necessary for the database
to continue to function in the way it was
intended by its maker to function.

Deleted

[re-inserted 12(3)]

Deleted

[re-inserted 14]

**25**

**CHAPTER** **HI** **: SUI GENERIS RIGHT**

**Article** **10**

**Object of Protection:**

**Right to Prevent Unauthorized Extraction from a**
**Database**

**For the purposes of this Directive "right to**
**prevent unauthorized extraction" means the**
**right of the owner of the rights in a database**
**to** **prevent** **acts of extraction and re-utilization**
**of part or all of the material from that**
**database.**

**2.** **Member States shall provide for a right for the**
**owner of the rights in a database to prevent**
**the unauthorised extraction or re-utilisation,**
**from that database, of** **its** **contents, in whole or**
**in substantial part, for commercial purposes.**
**This right to prevent unauthorised extraction**
**of the contents of a database shall apply**
**irrespective of the eligibility of that database**
**for protection under copyright. It shall not**
**apply to the contents of a database where**
**these are works already protected by copyright**
**or neighbouring rights.**

**26**

Article 11

Acts Performed in Relation to the Contents of

a Database - Unauthorized Extraction of the

Contents

Notwithstanding the right provided for in
Article 10 (2) to prevent the unauthorised
extraction and re-utilisation of the contents of

a database, if the works or materials contained
in a database which is made publicly available
cannot be independently created, collected or
obtained from any other source, the right to
extract and re-utilise, in whole or substantial
part, works or materials from that database
for commercial purposes that are not for
reasons such as economy of time, effort or
financial investment, shall be licensed on fair
and non-discriminatory terms. A declaration
shall be submitted clearly setting out the
justification of the commercial purposes
pursued and requiring the issue of a licence.

2. The right to extract and re-utilise the contents
of a database shall also be licensed on fair and

non-discriminatory terms if the database is
made publicly available by :

(a) public authorities or public corporations or
bodies which are either established or

authorised to assemble or to disclose

information pursuant to legislation, or are
under a general duty to do so,:

(b) firms or entities enjoying a monopoly status by
virtue of an exclusive concession by a public
body.

For the purposes of this Article, databases
shall not be deemed to have been made

publicly available unless they may be freely
interrogated.

Member States shall provide appropriate
measures for arbitration between the parties in
respect of such licences.

[previous 8(3) Unchanged]

**27**

5. The lawful user of a database may, without
authorization of the database maker, extract and reutilize insubstantial parts of works or materials
from a database for commercial purposes provided
that acknowledgement is made of the source.

[previous 8(4)] Unchanged

6.The lawful user of a database may, without
authorisation of the database maker, and without
acknowledgement of the source, extract and reutilise insubstantial parts of works or materials
from that database for personal private use only.

[previous 8(5)] Unchanged

7. For the purposes of this Article, commercial
purposes' means any use, which is not :

(a) private, personal, and

(b) for non-profit making purposes.

8.(a) For the purposes of paragraphs 4 and 5 of this
Article, 'insubstantial parts' means parts of a
database made available to the public whose
reproduction, evaluated quantitatively and
qualitatively in relation to the database from which
they are copied, can be considered not to prejudice
the exclusive rights of the owner of that database
to exploit the database.

(b)In both instances, it shall likewise be incumbent on
the lawful user to demonstrate that the extraction

and re-utilisation of insubstantial parts do not
prejudice the exclusive rights of the owner of that
database to exploit the database, and that such
practices are not carried out any more than is
necessary to achieve the desired objective.

9. The provisions of this Article shall apply only to
the extent that such extraction and re-utilization

does not conflict with any other prior rights or
obligations, including the legislation or international
obligations of the Member States or of the
Community in respect of matters such as personal
data protection, privacy, security or confidentiality.

(previous 8(6)] Unchanged

28

Article 12

Term of Protection

1. The right to prevent unauthorised extraction
shall run from the date of creation of the

database for 15 years, starting on 1 January
of the year following :

(a) the date when the database was first made
available to the public, or

(b) any substantial change to the database.

(a) Any substantial change to the contents of a
database shall give rise to a fresh period of
protection by the right to prevent unauthorized
extraction.

(b) For the purposes of the term of protection
provided for in this Article "substantial
change" means the successive accumulation of
insubstantial additions, deletions or alterations
in respect of the contents of a database
resulting in substantial modification to all or
part of a database.

3.(a) Insubstantial changes to the contents of a
database shall not entail a fresh period of
protection of that database by the right to
prevent unauthorised extraction.

(b) For the purpose of the term of protection
provided for in this Article "insubstantial
change" means insubstantial additions,
deletions or alterations which, taken together,
do not substantially modify the contents of a
database.

29

**Article** **11**

Beneficiaries of Protection under Right to Prevent

Unfair Extraction from a Database

1. Protection granted under this Directive to the
contents of a database against unfair extraction or
re-utilization shall apply to databases whose
makers are nationals of the Member State or who

have their habitual residence on the territory of the
Community.

2. Where databases are created under the provisions
of Article 3(4), paragraph 1 above shall also apply
to companies and firms formed in accordance with
the legislation of a Member State and having their
registered office, central administration or principal
place of business within the Community. Should the
company or firm formed in accordance with the
legislation of a Member State have only its
registered office in the territory of the Community,
its operations must possess an effective and
continuous link with the economy of one of the
Member States.

3. Agreements extending the right to prevent unfair
extraction to databases produced in third countries
and falling outside the provisions of paragraphs 1
and 2 shall be concluded by the Council acting on a
proposal from the Commission. The term of any
protection extended to databases by virtue of this
procedure shall not exceed that available under
Article 9(3).

**Article 13**

Beneficiaries of Protection under Right to Prevent

Unauthorized Extraction from a Database

Protection granted pursuant to this Directive
to the contents of a database against
unauthorized extraction or re-utilisation shall

apply to databases whose makers are nationals
of a Member State or who have their habitual

residence on the territory of the Community.

Unchanged

Agreements extending the right to prevent
unauthorized extraction to databases produced
in third countries and falling outside the
provisions of paragraphs 1 and 2 shall be
concluded by the Council acting on a proposal
from the Commission. The term of any
protection extended to databases by virtue of
this procedure shall not exceed that available
pursuant to Article 12(1).

CHAPTER IV : COMMON PROVISIONS

Article 14

Remedies

Member States shall provide appropriate remedies in
respect of infringements of the rights provided for in
this Directive.

[old Article 10)] Unchanged

**30**

Article 12 Article 15

Continued Application of other Legal Provisions Continued Application of other Legal Provisions

The provisions of this Directive shall be witliout
prejudice to copyright or any other right subsisting
in the works or materials incorporated into a
database as well as to other legal provisions such as
patent rights, trade marks, design rights, unfair
competition, trade secrets, confidentiality, data
protection and privacy, and the law of contract
applicable to the database itself or to its contents.

2. Protection under the provisions of this Directive
shall also be available in respect of databases
created prior to the date of publication of the
Directive without prejudice to any contracts
concluded and rights acquired before that date.

Article 13

Final Provisions

1. Member States shall bring into force the laws,
regulations and administrative provisions necessary
to xx>mply with this Directive before 1 January
1993.

When Member States adopt these provisions, these
shall contain a reference to tins Directive or shall be
accompanied by such reference at the time of their
official publication. The procedure for such
reference shall be adopted by Member States.

2. Member States shall communicate to the
Commission the provisions of national law which
they adopt in the field covered by this Directive.

Unchanged

2. Protection pursuant to the provisions of this
Directive as regards copyright and the right to
prevent unauthorized extraction and reutilization of the contents of the database shall

also be available in respect of databases created
prior to the date of publication of the Directive
which on that date fulfilled the requirements
laid down therein as regards the protection of
databases. Such protection shall be without
prejudice to any contracts concluded and rights
acquired before that date.

Article 16

Final Provisions

1. Member States shall bring into force the laws,
regulations and administrative provisions
necessary to comply with this Directive before
1 January 1995.

Unchanged

Unchanged

31

Not later than at the end of the filth year of
implementation of this Directive and every two
years thereafter the Commission shall submit to
the European Parliament, the Council and the
Economic and Social Committee a report on the
application of this Directive and, where
necessary, shall submit proposals for its
adjustment in line with developments in the area
of databases.

**Article 14** **Article 17**

This Directive is addressed to the Member States. Unchanged.

**ISSN** **0254-1475**

### **COM(93) 464 final**

# **DOCUMENTS**

## EN 15 08 Catalogue number : CB-CO-93-509-EN-C ISBN 92-77-59625-2

**Office for Official Publications of** **the** **European Communities**

**L-2985** **Luxembourg**