CELEX: 51992PC0024
Language: en
Date: 1992-05-13
Title: Proposal for a COUNCIL DIRECTIVE on the legal protection of databases

No C 156/ 4                             Official Journal of the European Communities                                    23 . 6 . 92
                                                               II
                                                       (Preparatory Acts)
                                                  COMMISSION
                            Proposal for a Council Directive on the legal protection of databases
                                                         (92 /C 156 /03)
                                                 COM(92) 24 final — SYN 393
                                       (Submitted by the Commission on 15 April 1992)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,                                 present time adversely affecting the establishment
                                                                         and functioning of the internal market or the devel­
                                                                         opment of an information market within the
                                                                         Community need not be addressed in this Directive ;
Having regard to the Treaty establishing the European
Economic Community, and in particular Articles 57 (2),
66, and 100a thereof,
                                                                     4. Whereas copyright protection for databases exists in
                                                                         varying forms in a number of Member States
                                                                         according to legislation or case-law and such unhar­
Having regard to the proposal from the Commission,                       monized intellectual property rights, being territorial
                                                                         in nature, can have the effect of preventing the free
                                                                         movement of goods or services within the
In cooperation with the European Parliament,                             Community if differences in the scope, conditions
                                                                         derogations or term of protection remain between
                                                                         the legislation of the Member States ;
Having regard to the opinion of the Economic and
Social Committee,
                                                                     5 . Whereas although copyright remains an appropriate
                                                                         form of exclusive right for the legal protection of
                                                                         databases and in particular an appropriate means to
  1 . Whereas databases are at present not clearly                       secure the remuneration of the author who has
      protected in all Member States by existing legislation             created a database, in addition to copyright
      and such protection, where it exists, has different                protection, and in the absence as yet of a
      attributes ;                                                       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 ;
 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                  6 . Whereas      database    development     requires      the
      databases and in particular on the freedom of indi­                investment of considerable human, technical and
      viduals and companies to provide on-line database                  financial resources while such databases can be
      goods and services on an equal legal basis                         copied at a fraction of the cost needed to develop
      throughout the Community; whereas such                             them independently;
      differences could well become more pronounced as
      Member States introduce new legislation on this
      subject, which is now taking on an increasingly                7 . Whereas unauthorized access to a database and
      international dimension .                                          removal of its contents constitute acts which can
                                                                         have the gravest economic and technical conse­
                                                                         quences ;
  3. Whereas existing differences having a distortive
      effect on the establishment and functioning of the
      internal market need to be removed and new ones                8 . Whereas databases are a vital tool in the devel­
      prevented from arising, while differences not at the                opment of an information market within the
 ---pagebreak--- 23 . 6 . 92                              Official Journal of the European Communities                              No C 156/ 5
      Community; whereas this tool will be of use to a                   as texts, sounds, images, numbers, facts, data or
      large variety of other activities and industries ;                 combinations of any of these;
 9. Whereas the exponential growth, in the Community                17. Whereas the protection of a database should extend
      and worldwide, in the amount of information                       to the electronic materials without which the
     generated and processed annually in all sectors of                 contents selected and arranged by the maker of the
     commerce and industry requires investment in all the               database cannot be used, such as, for example, the
     Member        States     in     advanced     information           system made to obtain information and present
     management systems ;                                               information to the user in electronic or non-elec­
                                                                        tronic form, and the indexation and thesaurus used
                                                                        in the construction or operation of the database ;
10 . Whereas a correspondingly high rate of increase in
     publications of literary, artistic, musical and other
     works necessitates the creation of modern archiving,          18 . Whereas the term database should not be taken to
     bibliographic and accessing techniques, to enable                  extend to any computer programme used in the
     consumers to have at their disposal the most compre­               construction or operation of a database, which
     hensive collection of the Community's heritage;                    accordingly remain protected by Council Directive
                                                                        91 /250/EEC (l);
11 . Whereas there is at the present time a great
     imbalance in the level of investment in database              19. Whereas the Directive should be taken as applying
     creation both as between the Member States them­                   only to collections which are made by electronic
     selves, and between the Community and the world's                  means, but is without prejudice to the protection
     largest database-producing countries ;                             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
12 . Whereas such an investment in modern information                   Member States, of collections made by other means ;
     storage and retrieval systems will not take place
     within the Community unless a stable and uniform
     legal protection regime is introduced for the                 20. Whereas works protected by copyright or by any
     protection of the rights of authors of databases and               other rights, which are incorporated into a database,
     the repression of acts of piracy and unfair compe­                 remain the object of their author's exclusive rights
     tition ;
                                                                        and may not therefore be incorporated into or
                                                                        reproduced from the database without the
                                                                        permission of the author or his successors in title ;
13 . Whereas this Directive protects collections,
     sometimes called compilations, of works or other
     materials whose arrangement, storage and access is            21 . Whereas the rights of the author of such works
     performed by means which include electronic,                       incorporated into a database are not in any way
     electromagnetic or electro-optical processes or                    affected by the existence of a separate right in the
     analogous processes ;                                              original selection or arrangement of these works in a
                                                                        database ;
14. Whereas the criteria by which such collections shall
     be eligible for protection by copyright should be that        22. Whereas the moral rights of the natural person who
     the author, in effecting the selection or the                      has created the database should be owned and
     arrangement of the contents of the database, has                   exercised according to the provisions of the legis­
     made an intellectual creation ;                                    lation of the Member States consistent with the
                                                                        provisions of the Berne Convention, and remain
                                                                        therefore outside the scope of this Directive ;
15 . Whereas no criteria other than originality in the
     sense of intellectual creation should be applied to
     determine the eligibility of the database for                 23. Whereas the author's exclusive rights should include
     copyright protection, and in particular no aesthetic               the right to determine the way in which his work is
     or qualitative criteria should be applied ;                        exploited and by whom, and in particular to control
                                                                        the availability of his work to unauthorized persons ;
16. Whereas the term database should be understood to
     include collections of works, whether literary,
     artistic, musical or other, or of other material such         (') OJ No L 122, 17. 5. 1991 , p. 42.
 ---pagebreak--- No C 156 / 6                            Official Journal of the European Communities                                   23 . 6 . 92
24. Whereas, nevertheless, once the rightholder has                     as an extension of copyright protection to mere facts
      chosen to make available a copy of the database to a              or data ;
      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                30. Whereas the existence of a right to prevent the
      rightholder, even if such access and use necessitate              extraction    and    re-utilization    for  commercial
      performance of otherwise restricted acts ;                       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 them­
                                                                       selves ;
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         31 . Whereas, in the interests of competition between
     be presumed to be able to perform any of the                      suppliers of information products and services, the
      restricted acts which are necessary for access to and            maker of a database which is commercially
      use of the database ;
                                                                       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
26. Whereas in respect of reproduction in the limited                  licensed are used in the independent creation of new
     circumstances provided for in the Berne Convention,               works, and providing that no prior rights in or obli­
     of the contents of the database by the lawful user,               gations incurred in respect of those works or
     whether in electronic or non-electronic form, the                 materials are infringed ;
     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               32 . Whereas licences granted in such circumstances
     exploitation or distribution ;                                    should be fair and non-discriminatory under
                                                                       conditions to be agreed with the rightholder;
27 . Whereas the increasing use of digital recording tech­        33 . Whereas such licences should not be requested for
     nology exposes the database maker to the risk that                reasons of commercial expediency such as economy
     the contents of his database may be downloaded and                of time, effort or financial investment ;
     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 ;                                            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 ;
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 aginst misappro­             35 . Whereas licences may not be refused in respect of
                                                                       the   extraction   and    re-utilization  of works       or
     priation of the results of the financial and
     professional investment incurred in obtaining and                 materials from a publicly available database created
     collecting data by providing that certain acts done in            by a public body providing that such acts do not
     relation to the contents of a database are subject to             infringe the legislation or international obligations of
     restriction even when such contents are not them­                 Member States or the Community in respect of
     selves protected by copyright or other rights ;                   matters such as personal data protection, privacy,
                                                                       security or confidentiality ;
29. Whereas such protection of the contents of a                  36. Whereas the objective of the provisions of this
     database is to be achieved by a special right by which            Directive, which is to afford an appropriate and
     the maker of a database can prevent the unauth­                   uniform level of protection of databases as a means
     orized extraction or re-utilization of the contents of            of securing the remuneration of the author who has
     that database for commercial purposes ; whereas this              created the database, is different from the aims of
     special right (hereafter called 'a right to prevent               the proposal for a Council Directive concerning the
     unfair extraction') is not to be considered in any way            protection of individuals in relation to the processing
 ---pagebreak---  23 . 6 . 92                             Official Journal of the European Communities                              No C 156 /7
        of personal data ('), which are to guarantee free                operation of the database such as its thesaurus, index
        circulation of personal data on the basis of a                   or system for obtaining or presenting information ; it
        harmonized standard of rules designed to protect the            shall not apply to any computer programme used in
        fundamental rights, notably the right to privacy                the making or operation of the database ;
        which is recognized in Article 8 of the European
        Convention for the Protection of Human Rights and
        Fundamental Freedoms ; whereas the provisions of            2 . 'right to prevent unfair extraction' means the right of
        this Directive are without prejudice to the data                the maker of a database to prevent acts of extraction
                                                                        and re-utilization of material from that database for
       protection legislation ;
                                                                        commercial purposes ;
 37. Whereas, notwithstanding the right to prevent unfair
       extraction from a database, it should still be possible      3. 'insubstantial part' means parts of a database whose
       for the lawful user to quote from or otherwise use,              reproduction, evaluated quantitatively and qualita­
       for commercial and private purposes, the contents of             tively in relation to the database from which they are
       the database which he is authorized to use,                      copied, can be considered not to prejudice the
       providing that this exception is subject to narrow               exclusive rights of the maker of that database to
       limitations and is not used in a way which would                 exploit the database ;
       conflict with the author's normal exploitation of his
       work or which would unreasonably prejudice his               4 . 'insubstantial change' means additions, deletions or
       legitimate interests ;                                           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
 38 . Whereas the right to prevent unfair extraction from               intended by its maker to function.
       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                                             Article 2
       companies or firms not established in a Member
       State within the meaning of the Treaty if such third        Object of protection : copyright and right to prevent
       countries offer comparable protection to databases                        unfair extraction from a database
       produced by nationals of the Member States or
       habitual residents of the Community ;
                                                                    1 . In accordance with the provisions of this Directive,
39 . Whereas , in addition to remedies provided under the
                                                                   Member States shall protect databases by copyright as
                                                                   collections within the meaning of Article 2 (5) of the
       legislation of the Member States for infringements of       Berne Convention for the Protection of Literary and
       copyright or other rights, Member States should             Artistic Works (text of the Paris Act of 1971 ).
       provide for appropriate remedies against unfair
       extraction from a database ;
                                                                   2 . The definition of database in point 1 of Article 1 is
                                                                   without prejudice to the protection by copyright of
40 . Whereas in addition to the protection given under             collections of works or materials arranged, stored or
       this Directive to the database by copyright, and to its     accessed by non-electronic means, which accordingly
       contents against unfair extraction, other legal             remain protected to the extent provided for by Article 2
       provisions existing in the law of the Member States         (5) of the Berne Convention .
       relevant to the supply of database goods and services
       should continue to apply,
                                                                   3 . A database shall be protected by copyright if it is
                                                                   original in the sense that it is a collection of works or
HAS ADOPTED THIS DIRECTIVE :                                       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
                              Article 1                            the eligibility of a database for this protection.
                            Definitions
                                                                   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
For the purposes of this Directive :                               themselves protected by copyright; the protection of a
                                                                   database shall be without prejudice to any rights
1 . ' database' means a collection of works or materials           subsisting in those works or materials themselves .
     arranged, stored and accessed by electronic means,
    and the electronic materials necessary for the                 5 . Member States shall provide for a right for the
                                                                   maker of a database to prevent the unauthorized
(') OJ No C 277, 5 . 11 . 1990 , p. 3 .                            extraction or re-utilization, from that database, of its
 ---pagebreak---  No C 156 / 8                          Official Journal of the European Communities                                 23 . 6 . 92
 contents, in whole or in substantial part, for commercial                                  Article 5
 purposes. This right to prevent unfair extraction of the
 contents of a database shall apply irrespective of the                            Restricted acts : copyright
 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.                                            The author shall have, in respect of:
                                                                 — the selection or arrangement of the contents of the
                           Article 3                                 database, and
                    Authorship : copyright
                                                                 — the electronic material referred to in point 1 of
                                                                     Article 1 used in the creation or operation of the
                                                                     database,
 1.    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       the exclusive right within the meaning of Article 2 ( 1 ) to
                                                                 do or to authorize :
that legislation.
                                                                 (a) the temporary or permanent reproduction of the
2. Where collective works are recognized by the legis­               database by any means and in any form, in whole or
lation of a Member State, the person considered by that              in part;
legislation to have created the database shall be deemed
to be its author.
                                                                 (b) the translation, adaptation, arrangement and any
                                                                     other alteration of the database ;
3. In respect of a database created by a group of
natural persons jointly, the exclusive rights shall be
owned jointly.                                                   (c) the reproduction of the results of any of acts listed in
                                                                     (a) or (b);
4. Where a database is created by an employee in the             (d) any form of distribution to the public, including
execution of his duties or following the instructions                rental, of the database or of copies thereof. The first
given by his employer, the employer exclusively shall be             sale in the Community of a copy of the database by
entitled to exercise all economic rights in the database so          the rightholder or with his consent shall exhaust the
created, unless otherwise provided by contract.                      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;
                           Article 4
                                                                 (e) any communication, display or performance of the
    Incorporation of works or materials into a database              database to the public.
1 . The incorporation into a database of biblio­                                            Article 6
graphical material or brief abstracts, quotations or
summaries which do not substitute for the original works         Exceptions to the restricted acts enumerated in Article 5 :
themselves shall not require the authorization of the                    copyright in the selection or arrangement
rightholder in those works.
                                                                 1 . The lawful user of a database may perform any of
2.     The incorporation into a database of other works          the acts listed in Article 5 which is necessary in order to
or materials remains subject to any copyright or other           use that database in the manner determined by
rights acquired or obligations incurred therein.                 contractual arrangements with the rightholder.
 ---pagebreak---  23 . 6 . 92                             Official Journal of the European Communities                               No C 156 /9
2. In the absence of any contractual arrangements                   disclose information pursuant to legislation, or is under a
between the rightholder and the user of a database in               general duty to do so.
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         3.    Member States shall provide appropriate measures
database and use thereof shall not require the auth­                for arbitration between the parties in respect of such
orization of the rightholder.                                       licences .
 3 . The exceptions referred to in paragraphs 1 and 2              4. The lawful user of a database may, without auth­
relate to the subject matter listed in Article 5 and are           orization of the database maker, extract and re-utilize
without prejudice to any rights subsisting in the works or         insubstantial parts of works or materials from a database
materials contained in the database .                              for commercial purposes provided that acknowledgement
                                                                   is made of the source .
                           Article 7
                                                                   5.     The lawful user of a database may, without
Exceptions to the restricted acts in relation to the               authorization of the database maker, and without
                   copyright in the contents                       acknowledgement of the source, extract and re-utilize
                                                                   insubstantial parts of works or materials from that
                                                                   database for personal private use only.
 1 . Member States shall apply the same exceptions to
any exclusive copyright or other rights in respect of the          6.     The provisions of this Article shall apply only to the
contents of the database as those which apply in the               extent that such extraction and re-utilization does not
legislation of the Member States to the works or                   conflict with any other prior rights or obligations,
materials themselves contained therein, in respect of brief        including the legislation or international obligations of
quotations, and illustrations for the purposes of teaching,        the Member States or of the Community in respect of
provided that such utilization is compatible with fair             matters such as personal data protection, privacy,
practice.                                                          security or confidentiality.
2. Where the legislation of the Member States or
                                                                                             Article 9
contractual arrangements concluded with the rightholder
permit the user of a database to carry out acts which are                              Terms of protection
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 .                                 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
                           Article 8                               copyright and related rights.
Acts performed in relation to the contents of a database
             — unfair extraction of the contents
                                                                   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
1 . Notwithstanding the right provided for in Article 2            database .
(5) to prevent the unauthorized extraction and re-util­
ization of the contents of a database, if the works or
materials contained in a database which is made publicly           3 . The right to prevent unfair extraction shall run
available cannot be independently created, collected or            from the date of creation of the database and shall expire
obtained from any other source, the right to extract and           at the end of a period of 10 years from the date when
re-utilize, in whole or substantial part, works or                 the database is first lawfully made available to the public.
materials from that database for commercial purposes ,             The term of protection given in this paragraph shall be
shall be licensed on fair and non-discriminatory terms .           deemed to begin on 1 January of the year following the
                                                                   date when the database was first made available .
2.      The right to extract and re-utilize the contents of a
database shall also be licensed on fair and non-discrimi­          4 . Insubstantial changes to the contents of a database
natory terms if the database is made publicly available by         shall not extend the original period of protection of that
a public body which is either established to assemble or           database by the right to prevent unfair extraction.
 ---pagebreak---  No C 156 / 10                         Official Journal of the European Communities                                23 . 6 . 92
                          Article 10                                                      Article 12
                          Remedies                                    Continued application of other legal provisions
                                                                  1.   The provisions of this Directive shall be without
 Member States shall provide appropriate remedies in
 respect of infringements of the rights provided for in this     prejudice to copyright or any other right subsisting in the
 Directive .
                                                                 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
                          Article 11                             of contract applicable to the database itself or to its
                                                                 contents .
Beneficiaries of protection under right to prevent unfair
                 extraction from a database
                                                                 2 . Protection pursuant to the provisions of this
                                                                 Directive shall also be available in respect of databases
                                                                 created prior to the date of publication of the Directive
 1 . Protection granted pursuant to this Directive to the        without prejudice to any contracts concluded and rights
contents of a database against unfair extraction or              acquired before that date.
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.                                     Article 13
                                                                                       Final provisions
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                1 . Member States shall bring into force the laws,
legislation of a Member State and having their registered        regulations and administrative provisions necessary to
office, central administration or principal place of             comply with this Directive before 1 January 1993 .
business within the Community. Should the company or
firm formed in accordance with the legislation of a              When Member States adopt these provisions, these shall
Member State have only its registered office in the              contain a reference to this Directive or shall be accom­
territory of the Community, its operations must possess          panied by such reference at the time of their official
an effective and continuous link with the economy of             publication . The procedure for such reference shall be
one of the Member States .                                       adopted by Member States .
                                                                 2.   Member      States    shall   communicate    to     the
3 . Agreements extending the right to prevent unfair             Commission the provisions of national law which they
extraction to databases produced in third countries and          adopt in the field covered by this Directive.
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                                    Article 14
databases by virtue of this procedure shall not exceed
that available pursuant to Article 9 (3).                        This Directive is addressed to the Member States .