The 'Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases is a directive of the European Union in the field of copyright law, made under the internal market provisions of the Treaty of Rome. It harmonises the treatment of databases under copyright law and the sui generis'' right for the creators of databases which do not qualify for copyright.
Article 1 defines a database as "a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means". Non-electronic databases are also covered . Any computer program used to create the database is not included. Copyright protection of software is governed by Directive 91/250/EEC.
Copyright
Under Article 3, databases which, "by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation" are protected by copyright as collections: no other criterion may be used by Member States. This follows from the 1994 Agreement on the Trade-Related Aspects of Intellectual Property Rights, a widely adopted treaty to which all World Trade Organization members are party. TRIPS clarifies and arguably relaxes the criterion for protection of collections in the Berne Convention for the Protection of Literary and Artistic Works, which covers "collections of literary and artistic works" and requires creativity in the "selection and arrangement" of the contents: in practice the difference is likely to be slight. Any copyright in the database is separate from and without prejudice to the copyright in the entries. The acts restricted by copyright are similar to those for other types of work :
temporary or permanent reproduction by any means and in any form, in whole or in part;
translation, adaptation, arrangement and any other alteration;
any communication, display or performance to the public;
any reproduction, distribution, communication, display or performance to the public of a translation, adaptation, etc.
This shall not prevent the lawful use of the database by a lawful user : Member States may provide for any or all of the following limitations , as well as applying any traditional limitations to copyright:
reproduction for private purposes of a non-electronic database;
use for the sole purpose of illustration for teaching or scientific research, as long as the source is indicated and to the extent justified by the non-commercial purpose to be achieved;
Copyright protection usually lasts for seventy years after the death of the last publicly identified author. Anonymous or pseudonymous works gain protection for the later of 70 years after the work is lawfully made available to the public or 70 years from creation. If national legislation makes particular provision for collective works or for a legal person.
''Sui generis'' right
Copyright protection is not available for databases which aim to be "complete", that is where the entries are selected by objective criteria: these are covered by sui generisdatabase rights. While copyright protects the creativity of an author, database rights specifically protect the "qualitatively and/or quantitatively substantial investment in either the obtaining, verification or presentation of the contents": if there has not been substantial investment, the database will not be protected . Database rights are held in the first instance by the person or corporation which made the substantial investment, so long as:
the person is a national or domiciliary of a Member State or
the corporation is formed according to the laws of a Member State and has its registered office or principal place of business within the European Union.
Article 11 provides for the negotiation of treaties to ensure reciprocal treatment outside the EU: as of 2006, no such treaty exists. The holder of database rights may prohibit the extraction and/or re-utilization of the whole or of a substantial part of the contents: the "substantial part" is evaluated qualitatively and/or quantitatively and reutilisation is subject to the exhaustion of rights. Public lending is not an act of extraction or re-utilization. The lawful user of a database which is available to the public may freely extract and/or re-use insubstantial parts of the database : the holder of database rights may not place restrictions of the purpose to which the insubstantial parts are used. However, users may not "perform acts which conflict with normal exploitation of the database or unreasonably prejudice the legitimate interests of the maker of the database", nor prejudice any copyright in the entries. The same limitations may be provided to database rights as to copyright in databases :
extraction for private purposes of the contents of a non-electronic database;
extraction for the purposes of illustration for teaching or scientific research, as long as the source is indicated and to the extent justified by the non-commercial purpose to be achieved;
extraction and/or re-utilization for the purposes of public security or an administrative or judicial procedure.
Database rights last for fifteen years from the end of the year that the database was made available to the public, or from the end of the year of completion for private databases. Any substantial change which could be considered to be a substantial new investment will lead to a new term of database rights, which could, in principle, be perpetual. Database rights are independent of any copyright in the database, and the two could, in principle, be held by different people : as such, database rights can be compared to the rights of phonogram and film producers.
