Working Paper, First evaluation of Directive 96/9/EC on the legal protection of databases

DG Internal Market and Services


The purpose of this evaluation is to assess whether the policy goals of Directive 96/9/EC on the legal protection of databases (the “Directive”) have been achieved and, in particular, whether the creation of a special “sui generis" right has had adverse effects on competition. This is the first time that the Directive is subject to an evaluation.

The aim of the Directive was to remove existing differences in the legal protection of databases by harmonising the rules that applied to copyright protection, safeguard the investment of database makers and ensure that the legitimate interests of users to access information compiled in databases were secured.

At the time of its adoption, the Commission reasoned that differences in the standard of “originality” required for a database to enjoy copyright protection impeded the free movement of “database products” across the Community. In particular, the Commission argued that the difference between the lower “sweat of the brow” copyright standard (i.e. involving considerable skill, labour or judgment in gathering together and/or checking a compilation) that applied in common law Member States and the higher “intellectual creation” standard that applied in droit d’auteur Member States created distortion of trade in “database products”.

In essence, the Directive sought to create a legal framework that would establish the ground rules for the protection of a wide variety of databases in the information age. It did so by giving a high level of copyright protection to certain databases (“original” databases) and a new form of “sui generis” protection to those databases which were not “original” in the sense of the author's own intellectual creation (“non-original” databases).

The approach chosen in the Directive was to harmonise the threshold of “originality”. Those “non-original” databases that did not meet the threshold would be protected by a newly created right.

  • In a first step, this was done by adopting the higher standard that applied in droit d’auteur countries, which had the effect of protecting fewer databases by copyright (which was now limited to so-called “original” databases);
  • In a second step, for those databases that would previously have enjoyed protection under the “sweat of the brow” copyright, but no longer according to the harmonised “originality” standard, a new right was created - the “sui generis” right to prevent extraction and reutilisation of the whole or a substantial part of the contents of a database in which there has been substantial investment (“non-original” databases).

While “original” databases require an element of “intellectual creation”, “non-original” databases are protected as long as there has been “qualitatively or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents” of a database. The “sui generis” right is a Community creation with no precedent in any international convention. No other jurisdiction makes a distinction between “original” and “non-original” databases.

(1.1. The scope and purpose of this evaluation)