CELEX: 51993PC0464
Language: en
Date: 1993-10-04
Title: Amended proposal for a COUNCIL DIRECTIVE ON THE LEGAL PROTECTION OF DATABASES

COMMISSION OF THE EUROPEAN COMMUNITIES
                                         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)
 ---pagebreak---                                        -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
    c") the definition of "substantial" and "insubstantial"       change  in
        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.
(2)
 ---pagebreak---                                        -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.
 ---pagebreak---                                   _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.
 ---pagebreak---                                      -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 re-
arrangement, 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.
 ---pagebreak---                                        -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 p r e -
existing 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 1 0 ( 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.
 ---pagebreak---                                    -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)33final- 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.
 ---pagebreak---                                       Amended p r o p o s a l f o r 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;
 ---pagebreak--- 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;
 ---pagebreak---                                                               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)
 ---pagebreak---                                                         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 therightholderhas
     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;
 ---pagebreak---                                                           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 non-
    electronic form, the same restrictions and
    exceptions should apply to thereproductionof
    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;
 ---pagebreak---                                                           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;
 ---pagebreak---                                                          •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;
 ---pagebreak---                                                         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
 ---pagebreak---                                                         16
         INITIAL COMMISSION PROPOSAI.                      AMENDED PROPOSAL SUBSEQUENT TO THE
                                                            EUROPEAN PARLIAMENT OPINION OF 23
                                                                                  JUNE 1993
                                                                     CHAPTER I : DEFINITIONS
                        Article 1                                                 Article 1
                       Definitions                                              Definitions
1. For the purposes of this Directive,                      1. For the purposes of this Directive,
   'database' means a collection of works or                     'database' means a collection of data, works or
   materials arranged, stored and accessed by                    other materials arranged, stored and accessed
   electronic means, and the electronic materials                by electronic means, and the materials
   necessary for the operation of the database such              necessary for the operation of the database
   as its thesaurus, index or system for obtaining or            such as its thesaurus, index or system for
   presenting information; it shall not apply to any             obtaining or presenting information; it shall
   computer program used in the making or                        not apply to any computer program used in
   operation of the database;                                    the making or operation of the database,
   'right to prevent unfair extraction' means the right     Deleted
   of the maker of a database to prevent acts of            [re-inserted 10(1)]
   extraction and re-utilization of material from that
   database for commercial purposes;
3. 'insubstantial part' means parts of a database           Deleted
   whose reproduction, evaluated quantitatively and         [re-inserted 11(8)]
   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     Deleted
   alterations to the selection or arrangement of the       [re-inserted 12(3)]
    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.
                                                                  "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.
 ---pagebreak---                                                           17
                                                                   CHAPTER 11 : COPYRIGHT
                        Article 2                                            Article 2
                Object of Protection:                                  Object of Protection:
      Copyright and Right to Prevent Unfair
             Extraction from a Database
1. In accordance with the provisions of this                 Unchanged
   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        Unchanged
   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       Unchanged
   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           Unchanged
   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.
 ---pagebreak---                                                           18
   Member States shall provide for a right for the           Deleted
    maker of a database to prevent the unauthorised          [re-inserted 10(2)|
    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                                                 Article 3
               Authorship : Copyright                                          Authorship
   The author of a database shall be the natural             Unchanged
   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              Unchanged
   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            Unchanged
   natural persons jointly, the exclusive rights shall be
   owned jointly.
   Where a database is created by an employee in the         Unchanged
   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.
 ---pagebreak---                                                                             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 4                                             Article 5
    Incorporation of Works or Materials into a           Incorporation of Works or Materials into a
                      Database                                              Database
1. The incorporation into a database of                     The incorporation into a database of any
   bibliographical material or brief abstracts,              works or materials shall remain subject to the
   quotations or summaries which do not substitute           authorisation of the owner of any copyright
   for the original works themselves1 shall not require      or other rights acquired or obligations
   the authorisation of the right owner in those             incurred therein.
   works.
2. The incorporation into a database of other works     2. The incorporation into a database of
   or materials remains subject to any copyright or          bibliographical references, abstracts (with the
   other rights acquired or obligations incurred            exception of substantial descriptions or
   therein.                                                  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.
 ---pagebreak---                                                          20
                          Article 5                                           Article 6
               Restricted Acts: Copyright                                  Restricted Acts
The author shall have, in respect of:                       The owner of the rights in a database shall have,
                                                            in respect of:
- the selection or arrangement of the contents of the
    database, and                                           Unchanged
- the electronic material referred to in point 1 of
    Article 1 used in the creation or operation of the      Unchanged
    database,
the exclusive right within the meaning of Article 2(1)      Unchanged
to do or to authorize :
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                 Exceptions to the Restricted Acts
                          Article 5:
                                                             Copyright in the Selection or Arrangement
      Copyright in the Selection or Arrangement
 1. The lawful user of a database may perform any of         Unchanged
    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.
 ---pagebreak---                                                          21
2. In the absence of any contractual arrangements            Unchanged
   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          Unchanged
   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                                               Article 8
  Exceptions to the Restricted Acts in Relation to          Exceptions to the Restricted Acts in Relation to
             the Copyright in the Contents                           the Copyright in the Contents
1. Member States shall apply the same exceptions to          1. Member States shall apply the same
   any exclusive copyright or other rights in respect of         exceptions to any copyright or other rights of
   the contents of the database as those which apply in          the author of a work contained in a database
   the legislation of the Member States to the works or          as those which apply in the legislation of the
   materials themselves contained therein, in respect            Member States to that work, in respect of
   of brief quotations, and illustrations for the                brief quotations, and illustrations for the
   purposes of teaching, provided that such utilisation          purposes of teaching, provided that such
   is compatible with fair practicei                             utilisation is compatible with fair practice, in
                                                                 accordance with Article 10(3) of the Berne
                                                                 Convention.
2. Where the legislation of the Member States or                 Where the legislation of the Member States or
    contractual arrangements concluded with the                  contractual arrangements concluded with the
     rightholder permit the user of a database to carry          author of a work contained in a database
    out acts which are permitted as derogations to any           permit the user of that database to carry out
    exclusive rights in the contents of the database,            acts which are permitted as derogations to any
    performance of such acts shall not be taken to               exclusive rights of the author of the work,
     infringe the copyright in the database itself               performance of such acts shall not be taken to
    provided for in Article 5.                                   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.
 ---pagebreak---                                                          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        Deleted
   2(5) to prevent the unauthorised extraction and re-
                                                            [re-inserted 11(1)]
   utilization 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    Deleted
   database shall also be licensed on fair and non-
                                                            [re-inserted 11(2)]
   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         Deleted
   for arbitration between the parties in respect of
                                                            [re-inserted 11(4)]
   such licences.
4. The lawful user of a database may, without               Deleted
   authorization of the database maker, extract and re-
                                                            [rc-inscrted 11(5)]
   utilize 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               Deleted
   authorisation of the database maker, and without
                                                            [rc-inscrted 11(6)]
   acknowledgement of the source, extract and re-
   utilise insubstantial parts of works or materials
   from that database for personal private use only.
 ---pagebreak---                                                        23
6. The provisions of this Article shall apply only to     Deleted
   the extent that such extraction and re-utilization
                                                          [re-inserted 11(9)]
   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                                            Article 9
                  Terms of Protection                                   Terms of Protection
1. The duration of the period of copyright protection      1. The duration of the period of copyright
   of the database shall be the same as that provided          protection of the database shall be the same as
   for literary works, without prejudice to any future         that provided for literary works.
   Community harmonization of the term of protection
   of copyright and related rights.
2. Insubstantial changes to the selection or              2.(a) A substantial change to the selection or
   arrangement of the contents of a database shall             arrangement of the contents of a database
   not extend the original period of copyright                 shall give rise to the creation of a new data
   protection of that database.                                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.
 ---pagebreak---                                                           24
3. The right to prevent unfair extraction shall run as       Deleted
   of the date of creation of the database and shall         [rc-inscrted 12(1)|
   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.
                                                              (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.
    Insubstantial changes to the contents of a database      Deleted
    shall not extend the original period of protection of
                                                             [re-inserted 12(3)]
   that database by the right to prevent unfair
   extraction.
                       Article 10
                        Remedies
Member States shall provide appropriate remedies in          Deleted
respect of infringements of the rights provided for in
                                                             [re-inserted 14]
this Directive.
 ---pagebreak--- 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.
 ---pagebreak--- 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]
 ---pagebreak--- 27
 5. The lawful user of a database may, without
     authorization of the database maker, extract and re-
     utilize 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 re-
    utilise 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
 ---pagebreak--- 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.
 ---pagebreak---                                                           29
                        Article 11                                                 Article 13
 Beneficiaries of Protection under Right to Prevent         Beneficiaries of Protection under Right to Prevent
          Unfair Extraction from a Database                      Unauthorized Extraction from a Database
1. Protection granted under this Directive to the                   Protection granted pursuant to this Directive
   contents of a database against unfair extraction or              to the contents of a database against
   re-utilization shall apply to databases whose                    unauthorized extraction or re-utilisation shall
   makers are nationals of the Member State or who                  apply to databases whose makers are nationals
   have their habitual residence on the territory of the            of a Member State or who have their habitual
   Community.                                                       residence on the territory of the Community.
2. Where databases are created under the provisions             Unchanged
   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                 Agreements extending the right to prevent
   extraction to databases produced in third countries              unauthorized extraction to databases produced
   and falling outside the provisions of paragraphs 1               in third countries and falling outside the
   and 2 shall be concluded by the Council acting on a              provisions of paragraphs 1 and 2 shall be
   proposal from the Commission. The term of any                    concluded by the Council acting on a proposal
   protection extended to databases by virtue of this               from the Commission. The term of any
   procedure shall not exceed that available under                  protection extended to databases by virtue of
   Article 9(3).                                                    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
 ---pagebreak---                                                            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          Unchanged
   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           2. Protection pursuant to the provisions of this
   shall also be available in respect of databases                 Directive as regards copyright and the right to
   created prior to the date of publication of the                 prevent unauthorized extraction and re-
   Directive without prejudice to any contracts                    utilization of the contents of the database shall
   concluded and rights acquired before that date.                 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 13                                                   Article 16
                    Final Provisions                                            Final Provisions
1. Member States shall bring into force the laws,               1. Member States shall bring into force the laws,
   regulations and administrative provisions necessary             regulations and administrative provisions
   to xx>mply with this Directive before 1 January                 necessary to comply with this Directive before
    1993.                                                          1 January 1995.
   When Member States adopt these provisions, these            Unchanged
   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                      Unchanged
   Commission the provisions of national law which
   they adopt in the field covered by this Directive.
 ---pagebreak---                                                   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.
 ---pagebreak---                                                                       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