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Copyright and databases

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ESA / About Us / Law at ESA / Intellectual Property Rights

The term database is used to describe a compilation of works, data or other materials (i.e. collection of facts) arranged in a systematic or methodical way. In other words, ordered by logical principles set up by the compiler.

In principle, the facts themselves can not be protected but the order and organisation can, if they show a certain level of creativity on the part of the author.

When referring to databases it is necessary to distinguish between creative and non-creative databases because each is dealt with under a different set of legal rules.

Differences between creative and non-creative databases

Non-creative databases, sometimes referred to as ‘sweat of the brow’ databases, are databases that are not creative but based on a certain level of effort or investment. Generally, legal systems protect databases that constitute a creative compilation under copyright law. However, the level of creativity required for copyright protection has not been defined internationally and the legal position of databases is still unclear.

Some countries grant copyright protection for non-creative databases while others have created a sui generis right (special right) to protect non-creative databases that do not meet the required level of creativity for copyright protection but which were made with substantial investment.

In some countries, such as in the USA since the Feist decision, there is no proper legal protection for non-creative databases.

Directive 96/9/EC

The European Parliament and the Council found that the differences in the legal regime of databases in EU Member States were affecting the functioning of the internal market and the development of an information market within the Community. A Directive on the legal protection of databases was therefore adopted.

The 96/9/EC Directive defines databases 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”.

This provides for two types of protection: First, copyright protection for “the intellectual creation involved in the selection and arrangement of materials”. That is those databases that meet the requirement for “creativity” of the work.

Second, sui generis protection for “an investment (in human and technical resources and effort and energy) in the obtaining, verification or presentation of the contents of the databases”. Although such databases may not be creative they require a quantitatively or qualitatively substantial investment in terms of resources and/or time spent. For this reason non-creative databases should be protected.

However, the Directive does not provide protection for software used to create the database or for material contained in the database. It is the scheme of the database that is protected.

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