Unoriginal, but made with blood, sweat and tears – Why the database right is still useful
A lot has changed in the world of data since the adoption of EU database directive in 1996: The past two decades have seen the transformation from physical media to internet of things and beyond, and the directive is currently under review. Nevertheless, the database right is still a useful tool in the online environment. This article explains why.
What does the database right protect?
The database right is based on the 1996 EU directive on the legal protection of databases. Unlike copyright, the database right and its Nordic relative, the catalogue right, is essentially an economic right. It does not protect original creative expression, but rather, substantial investments made by the manufacturer of a database.
The prerequisites for obtaining a database right are that there has been a significant investment in the collection, verification or presentation of the content of the database. Importantly, the database right protects against the exploitation of the database or significant parts of thereof, but not the individual pieces of information. The intent is not to monopolise data, but to protect investment of those who create databases and make them accessible to others.
Protection against parasitic copying – using the database right to protect online investments
Many online services consist of material that as such does not exceed the threshold of originality required for copyright protection. This may be the case especially with regard to online classified marketplaces. These services often represent a substantial investment for their creators and have a significant value for their owners as well as their users. The value of these services lies in the large quantity of adverts, data and users attracted by the strong platform and trusted brand, rather than individual adverts as such.
The content of such services can, however, be relatively easily copied, e.g. by using web crawlers. This content can then be reutilised in a competing service with substantially lower costs than those invested by the provider of the original service. Such activity takes unfair advantage of the original investment and causes the original service to lose users and advertising income. In this situation, copyright protection may, however, fall short: Not all of the ad content itself may be original enough to qualify for copyright protection.
This is where database right comes into play. As set forth in the recitals of the database directive, the database right is intended to give holders of database right protection against the manufacture of a parasitic competing product. While individual pieces of data as such cannot be protected based on the database right, the utilisation of a substantial part of the content of another service in order to create a competing product is not permitted.
Krogerus recently assisted media group Sanoma in a matter concerning the unauthorised exploitation of Sanoma's classified advertisement services and violation of Sanoma's database rights and other IPRs in relation to the same. Sanoma runs some of the most popular classified websites in Finland, and the adverts from Sanoma's services were utilised for the creation of a competing service.
Sanoma acted against the infringer and managed to stop the unauthorised exploitation of its services. "In the era of (big) data, platform economy and a raising awareness of data protection the database right has turned out to be more topical than perhaps expected. Companies are investing hundreds of millions of euros in data collection and creation of databases. Totally new businesses based purely on data usage have grown out from the big data," says Marja-Leena Tuomola, COO of Sanoma Digital Finland.
"Contractual protection is available only between the contracting parties, but companies also need protection against third parties who are not willing to submit themselves into any contractual arrangements. Also from a GDPR point of view, the owners of databases containing personal data have to be able to protect themselves and their customers against illegal usage of personal data. In my opinion, the database right is now more important than ever before," continues Ms Tuomola.
While the database right is not a cure-all, it is certainly a useful tool in the IPR toolbox when protecting one's assets online. As always, however, the most effective protection is best formed of a combination of contractual protection and several IPR rights, of which the database right can be one important element, especially where the content itself does not qualify for copyright protection.
It should be noted that the database right is currently under review, and it is being evaluated how the directive still fulfils its policy goals and is fit-for-purpose in a digital, data-driven economy. The last public consultation took place in 2017, and the Commission is now analysing the replies received. The results will be used for the evaluation of the database directive and to examine possible needs for adjustments. We will keep a close eye on further developments of the database right.