Subject: EU Database Directive
From: Emanuella Giavarra (ecup.secr@dial.pipex.com)
Date: pe 04 heinä 1997 - 16:48:30 EEST
Dear list members,
I apologize for the length of this message, but I believe that it is
necessary to inform you about my interpretation of the Directive on the
legal protection of databases. This Directive will set the scene for all
the other Directives that are coming in the field of copyright. I have
seen many implementation proposals so far and I must tell you that I am
quite worried. Some implementation proposals are too restrictive,
especially for the interpretations of the exceptions and limitations
under this Directive.
The Directive concerned is the Directive on the legal protection of
databases of 11 March 1996 (Official Journal L 77/20 of 27 march 1996).
All EU goverments are in the process of formulating implementation
proposals. The Directive has to be implemented before 1 January 1998.
This means that there is not a lot of time left to express your concerns
with your government, but it is certainly not too late.
The consequences of this Directive will be far reaching for libraries
due to the fact that libraries acquire daily databases on CD-Rom or
produce databases themselves.
During the WIPO Diplomatic Conference, no Treaty on databases was
adopted. In September 1997 the first discussions on this subject will
start at WIPO in Geneva. The implementation of the Directive on the
legal protection of databases in the EU will set a precedent for the
content of the draft WIPO Database Treaty.
What is the contents of the database Directive? And were do libraries
have to be watchful!
The Directive regulates the use of databases and provides for an a
better protection of databases. It provides for a copyright protection
and a new sui generis right protection.
The selection or the arrangement of the content of a database will be
protected by copyright. This part of the Directive will be implemented
in the existing copyright laws.
The protection of the investment in creating a database will be
protected by the new sui generis right. This part of the Directive will
be implemented in a seperate law. This sui generis right also protects a
library catalogue.
The framework of the Directive can be found in Preambule nr. 49
"the maker of a database or rightholder may not prevent a lawful user of
the database from extracting and re-utilising insubstantial parts;
whereas, however, the user may not unreasonably prejudice either the
legitimate interests of the holder of a sui generis right or the holder
of copyright or a related right in respect of the works or subject
matter contained in the database" (see also Art. 8 of the Directive).
Definitions in the Directive that need some clarification.
Lawful users
This means the user that acts in accordance with the law (=in accordance
with the limitations/exceptions under copyright), but also the user who
aquires rights under a licence.
Unsubstantial and substantial parts
The Directive makes a distinction between unsubstantial and substantial
parts. To make the distinction clearer some governments have added to
the implementation text of the Directive, the words "qualitatively
and/or
quantitatively" substantial or unsubstantial parts. This is an
improvement.
Database
The word "database" in the text of the Directive refers to the whole or
a substantial part of a database and to a non-electronic and electronic
database.
The exceptions for the use of databases which are protected under
copyright are given in Article 6 of the Directive and the exceptions to
the sui generis right are given in Article 9.
Article 6 (copyright)
Paragraph 1 says, that for the purposes of access to the content of the
databases and normal use of the contents by the lawful user shall not
require the authorization of the author of the database. What is normal
use? A clarification should be asked from your governments.
Paragraph 2a says, that your government can provide for a
limitation/exception in your copyright law for the reproduction for
private purposes of a non-electronic database. This means a copy of the
whole or a substantial part of a paper database. What about electronic
databases, like CD-Roms? There are enough arguments to convince your
goverments that it should be possible for the lawful user to continue to
make a copy of an insubstantial part of an electronic database.
Arguments for this are Article 6.2d, Article 6.3, Preambule nr. 49 and
Article 10 WIPO Copyright Treaty. I would like to advise you to ask your
governments to make this clear in the explanatory part to the
implementation of the Directive or explicit in the text of the law.
Paragraph 6.2b says, that it is possible to ask for an exception where
the use is for the sole purpose of illustration for teaching and
scientific research as long as it is non-commercial. Some governments
have not make a clear reference to scientific research. Please check
this.
Very important is Article 15 of the Directive in relation to Article 6.
Article 15 reads that any contractual provision contrary to Article 6.1
and Article 8 shall be null and void!
Article 9 (sui generis)
Paragraph 9a says, that the lawful user of a database may, without the
authorization of its maker extract or re-utilize a substantial part of
its contents in the case of extraction for private purposes of contents
of a non-electronic database. The arguments of the Berne Convention do
not apply here because the sui generis right is not protected by
copyright.
Paragraph 9b says, that the extraction for the purposes of illustration
for teaching or scientific research is possible, as long as it is
non-commercial.
The last point I would like to discuss with you is the relationship
between contract law and copyright law. In Article 7.3 of the Directive
it is mentioned that the sui generis right can be transferred,
assigned or granted under contractual licence. This Article has given a
lot of rights holders the excuse to say that this Directive leads to the
introduction of the concept that contract law is stronger than copyright
law. This is not correct. Article 7.3 only refers to databases protected
under the sui generis right! As I already explained this sui generis
right is not a copyright. This means that this Article does not harm the
contents of Articles 3, 4, 5 and 6 of the Directive.
In the EU, only the UK copyright law (common law) provides for the
possibility where contracts can override copyright law. Copyright laws
which are based on the concept of droit d'auteur provides for a stronger
protection to copyright law above contact law.
This is it for now. I would really appreciate if you would comment to my
interpretation of the Directive. If you want me to look over the draft
text of your governments, please contact me directly at
ecup.secr@dial.pipex.com
Kind regards,
Emanuella Giavarra
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