Gerald M. DiGiusto
APSA 2005
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Submitted 18 August 2005
an overstatement, the sui generis right has undoubtedly redefined the landscape of international
protection of data compilations.
Any electronic or print compilation that meets the Directive’s definition of a database is,
therefore, granted a fifteen-year right to prevent the unauthorized copying or reuse of all or any
“substantial part” of the database. This “substantial part” language is a rather controversial
aspect of the Directive, as it offers no indication as to what constitutes a “substantial part.”
Opponents of the sui generis approach contend that this ambiguity merely shifts the burden of
interpretation to consumers, who must be wary of crossing the undefined threshold of
“substantial part” and thus incur legal liability.
An equally controversial provision of the Directive is the duration of the sui generis
protection. The regulation clearly grants the right for fifteen years: “The right provided […]
shall run from the date of completion of the making of the database [and] shall expire fifteen
years from the first of January of the year following the date of completion.”
latitude permitted for the renewal and extension of this right, however, may create a right to
protection in perpetuity. The Directive reads, “Any substantial change, evaluated qualitatively or
quantitatively, to the contents of a database, including […] the accumulation of successive
additions, deletions or alterations, which would result in the database being considered to be a
substantial new investment […] shall qualify the database resulting from that investment for its
own term of protection.”
From this text, it is unclear whether the extended protection applies to
the entire database or merely the updated portions; traditional copyright grants such add-on
protection only to new material.
Consequently, the Directive raises the possibility that a
dynamic database that is frequently updated – such as many of those in the on-line environment
39
Mirchin, "The European Database Directive Sets the Worldwide Agenda," 9.Mirchin @9
40
Reichman, "Database Protection in a Global Economy," 465.
41
EU Database Directive, article 10(1).
42
Ibid., article 10(3).
43
Mirchin, "The European Database Directive Sets the Worldwide Agenda," 8-9, Reichman, "Database Protection in
a Global Economy," 465.
19
Convention