“Database protection and PSI reuse norms: How to straighten up
the balance?”
Dr Estelle Derclaye
Associate Professor and Reader in Intellectual
Property Law, University of Nottingham
1st LAPSI conference
5-6 May 2011, Milan
The problem
• State information (PSI) = rich, accurate, and therefore
valuable and reliable => state has a lot of power as can
sometimes benefit from copyright and the database sui
generis right on its information collections and can
charge monopoly prices if sole source data
• >< laws forcing the state to give access to its
documents and allow re-use either free of charge or at
minimal cost
• Thesis: the state should not benefit from database sui
generis right and copyright for several reasons – does
the Directive on PSI re-use provide an answer to this
problem and if not, what can be done?
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Overview
• 1. Features of the database sui generis
right and copyright of specific relevance to
PSI
• 2. Features of the Directive on re-use of
PSI of specific relevance to databases
• 3. Failure of the two directives and
possible solutions
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1.1. The database sui generis right
• Art. 13: Database Directive is without
prejudice to, among others, the legislation
on access to public documents – not reuse
• Art. 8 of the Directive Proposal =
compulsory licence 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” and also in cases of monopoly
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1.1. The database sui generis right
• Broad rights, scarce and narrow
exceptions, potentially perpetual term
(dynamic databases)
• Strong right even more so in cases of
monopolies which is often the case with
state databases but…
• Can the state really benefit from the
database sui generis right?
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1.1. The database sui generis right
• Not totally clear but possible because
– Deletion of article 8 of Directive Proposal
– No similar provision regarding traditional limitations
existing in copyright laws for database right
– Database maker? Needs investment => disputable
that state takes financial risk as already have public
money but what is a maker and what is investment?
– Need to prove investment in obtaining, verifying or
presenting the data, separate from creating data
(BHB, Fixtures Marketing decisions); most state
databases will be spin-off but not all
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1.2. Copyright
• New potential problem: copyright protection for
data? (Football Dataco, CJ reference)
• Q to CJ: Does copyright only subsist if there is
selection or arrangement of pre-existing data?
– If yes, Football Dataco does not have copyright because
giving a date to a match is creating data, not selecting or
arranging it.
– If no, copyright subsists and the BHB and Fixtures Marketing
rulings are completely bypassed.
• => Determination of whether copyright can
subsist in fixture lists and similar databases =>
monopoly on information?
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2. The Directive on PSI re-use
• No obligation for Member States to allow re-use =>
only moral duty – Directive’s biggest flaw
• Definition of document: virtually any information in
any form (text, visual or sound), except computer
programs => includes databases
• Definition of PSB: the state, including regional and
local authorities and bodies governed by public law,
bodies financed for the most part by the state
– => easy to circumvent if private sector finances 50,1 %
– => all three branches?
– Opinions in consultation on Directive review: one of the main
hurdles
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2. The Directive on PSI re-use
• Definition of PSI: documents held by public
sector bodies (PSB) except documents of
– third parties protected by IPR
– public service broadcasters, libraries, archives,
educational and research and cultural establishments,
such as universities, museums, orchestras, theatres…
– excluded by national access regimes including on the
grounds of the protection of national security, defence,
or public security, statistical or commercial
confidentiality
– => Some people want the definition of PSB extended
(opinions in consultation on Directive review)
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2. The Directive on PSI re-use
• Interface between PSI and IPR (rec. 22): “The Directive
does not affect the existence or ownership of intellectual
property rights of public sector bodies, nor does it limit
the exercise of these rights in any way beyond the
boundaries set by this Directive. The obligations
imposed by this Directive should apply only insofar as
they are compatible with the provisions of international
agreements on the protection of intellectual property
rights [in particular the Berne Convention and TRIPS].
Public sector bodies should, however, exercise their
copyright in a way that facilitates re-use.”
• Directive does not tackle issue whether the state should
have IPR in the first place … Origin: left open by Berne
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2. The Directive on PSI re-use
• Art. 2(4) Berne Convention: “It shall be a matter
for legislation in the countries of the Union to
determine the protection to be granted to official
texts of a legislative, administrative and legal
nature, and to official translations of such texts.”
• Not every Member State has a provision
excluding copyright for such official texts and
even less for database sui generis right
• Anyway, not every creation made by the state is
an official text
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Conclusion: Failure of the Directives
• PSI Directive gives so many options that
Member States laws diverge esp. on issue
of protection (so before we speak of reuse, licensing, charging etc.)
• E.g. UK and Belgium, most provisions
follow the Directive but there are some
which detail it and others which depart
from it
• Database Directive is also not entirely
clear on PSBs’ sui generis right and
copyright
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3.1. Solutions de lege ferenda
• Best solution: clear definition of state body, exclude
state databases from copyright and sui generis right
protection altogether (with very few exceptions e.g.
confidentiality, privacy etc) – revise either Directive or
both
• This would solve the licensing problem
• But contrary to Berne? Texts only not artistic or
audiovisual works
• Alternatively: extend all copyright exceptions and
limitations to the sui generis right and make them
imperative and standardise licences e.g. only CC0 or
CCBy
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3.2. Solutions de lege lata - based
on the Database Directive
• A strict interpretation of the Directive in the
footsteps of the ECJ 2004 decisions will already
restrict the number of cases where the state
owns sui generis rights; e.g. not allow the
circumvention of the Directive by the state
through the outsourcing of its database activities
to private companies
• Courts could apply the exception or exclusion of
official documents to the sui generis right by
analogy with their respective copyright laws
(analogical and teleological interpretation of the
Directive)
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3.2. Solutions de lege lata - based
on the Database Directive
• Some national courts have denied sui generis
right protection to PSBs’ databases because
• No risk was taken (Dutch Administrative Supreme
Court, 29/4/2009)
• Art. 11 DBD benefits only private individuals and
businesses (CFI Rome, 5/6/2008, Edizioni Cierre v.
Poste Italiane) but argument is weak
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3.2. Solutions de lege lata - based on
national laws
• Art. 8 Dutch Database Act: “1. The public authority shall
not have the right referred to in Article 2, paragraph 1,
with respect to databases of which it is the producer and
for which the contents are formed by laws, orders and
resolutions promulgated by it, legal decisions and
administrative decisions. 2. The right, referred to in
Article 2, paragraph 1, shall not apply to databases of
which the public authority is the producer, unless the
right is expressly reserved either in general by law,
order or resolution or in a particular case as evidenced
by a notification in the database itself or when the
database is made available to the public.”
• // copyright act exception for official acts but para 2
“reserved”…
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Conclusion
• Does the Directive on PSI re-use affect the
state’s sui generis right? No.
• Consolation: national access regimes and
implementation laws seem quite generous esp.
in relation to IPR-protected subject-matter
although not yet completely satisfactory
• Either, ideally both, Directives need revising on
the intellectual property protection and definition
of ‘state’ (should the state’s role be to make and
sell added value data or just provide raw data
free of charge?) points, and of course on other
points as well (charging,…)
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Thank you for your attention
University of Nottingham School of Law
http://www.nottingham.ac.uk/law/index.aspx
ederclaye@hotmail.com
Estelle.derclaye@nottingham.ac.uk