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The EU legal system for copyright and for
the protection of databases
ERA summer course on European IP law
RA Prof. Dr. Martin Senftleben
Trier, 2 July 2013
Page 2
Table of contents
sources of law
• EU Directives
• international treaties
copyright protection
• rationale of protection
• originality test
Page 3
Table of contents
copyright protection
• term of protection
• exclusive rights
• exceptions and limitations
• protection of technological measures
• enforcement
Page 4
Table of contents
sui generis database protection
• rationale of protection
• substantial investment
• exclusive rights
• exceptions and limitations
Sources of law
Page 6
cornerstone: Copyright Directive 2001/29/EC on
the harmonization of certain aspects of copyright
and related rights in the information society
●seeks to implement WIPO Copyright Treaty
●covers reproduction, communication to the
public and distribution right
●exceptions and limitations
●protection of technological protection measures
EU Directives
Page 7
1991: computer programs= Directive 2009/24/EC
1992: rental and lending right, neighbouring rights= Directive 2006/115/EC
1993: satellite broadcasting and cable retransmission●Directive 93/83/EEC
1993: term of protection= Directive 2006/116/EC
1996: protection of databases●Directive 96/9/EC
More specific Directives
Page 8
2001: resale right for original works of art●Directive 2001/84/EC
2012: orphan works●Directive 2012/28/EU●use privilege for libraries, educational
establishments, museums, archives, film heritage institutions, public broadcasting
●requirement of diligent search●unauthorised making available on the Internet and
reproduction for digitization and preservation purposes
●equitable remuneration of authors
More specific Directives
Page 9
The Berne Convention for the Protection of
Literary and Artistic Works (BC 1886/1967)
The Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS 1994)
The WIPO Copyright Treaty and the WIPO
Performances and Phonograms Treaty (WIPO
‘Internet’ Treaties 1996)
Relevant international treaties
Copyright
Page 11
books, writings, plays
musical compositions
choreography
drawings, paintings
sculptures, architecture
cinematographic works
photography
Literary and artistic works
Pablo Picasso, Guernica (1937)
Literary and artistic works
Literary and artistic works
Literary and artistic works
Literary and artistic works
Literary and artistic works
Literary and artistic works
The expression ‘literary and artistic works’ shall
include every production in the literary, scientific and artistic domain, whatever
may be the mode or form of its expression,…
Art. 2(1) Berne Convention
Charles and Ray Eames, Eames Lounge and Ottoman (1956)
Literary and artistic works
Literary and artistic works
Literary and artistic works
Art. 1(1) Computer Programs Directive
In accordance with the provisions of this Directive, Member States
shall protect computer programs, by copyright, as literary works
within the meaning of the Berne Convention for the Protection of
Literary and Artistic Works. For the purposes of this Directive, the term ‘computer programs’ shall include their preparatory design material.
Literary and artistic works
Rationale underlying copyright protection
Page 25
natural law argument (civil law)
●feelings of rightness and justice
●reward for creative labour
●civil law tradition
utilitarian incentive rationale (common law)
●stimulation of investment
●contribution to the overall welfare of society
●common law tradition
Different legal traditions in the EU
Utilitarian approach
‘A harmonised legal framework on copyright and related rights, through increased legal certainty and while providing for a high level of protection of intellectual property, will foster substantial investment in creativity and innovation, including network infrastructure,…’
Utilitarian approach
‘…and lead in turn to growth and increased competitiveness of European industry, both in the area of content provision and information technology and more generally across a wide range of industrial and cultural sectors. This will safeguard employment and encourage new job creation.’ (Recital 4, Copyright Directive 2001/29/EC)
Originality test
Page 29
work = materialization of the author’s individual personality
particular link between the author and the work
copyright is automatically acquired through the very act of creation
no formalities = no registration requirement
Originality
Page 30
CJEU, 16 July 2009, case C-5/08, Infopaq/Danske Dagblades Forening
Infopaq International
●active in the field of mediamonitoring and -analysis
●offers summaries of press articles
●uses specific procedure for capturing data: manual
registration, scanning, conversion to digital format,
indexing according to search terms
●procedure results in text fragments of 11 words
Danske Dagblades Forening
●association of Danish daily newspaper publishers
Page 31
introduction of an EU originality test
‘In those circumstances, copyright within the meaning
of Article 2(a) of Directive 2001/29 is liable to apply
only in relation to a subject-matter which is original in
the sense that it is its author’s own intellectual
creation.’ (para. 37)
derived by the Court from different sources
• international: Art. 2(5) and (8) Berne Convention
• EU: Art. 1(3) Computer Programs Directive, Art. 3(1)
Database Directive , Art. 6 Copyright Term Directive
CJEU, 16 July 2009, case C-5/08, Infopaq/Danske Dagblades Forening
Page 32
requirement of free and creative choices
‘Regarding the elements of such works covered
by the protection, it should be observed that they
consist of words which, considered in isolation,
are not as such an intellectual creation of the
author who employs them. It is only through the
choice, sequence and combination of those
words that the author may express his creativity
in an original manner and achieve a result which
is an intellectual creation.’ (para. 45)
CJEU, 16 July 2009, case C-5/08, Infopaq/Danske Dagblades Forening
Page 33
CJEU, 1 December 2011, case C-145/10, Painer/Der Standard
Page 34
free and creative choices can follow from various
circumstances of the production process
‘In the preparation phase, the photographer can
choose the background, the subject’s pose and the
lighting. When taking a portrait photograph, he
can choose the framing, the angle of view and the
atmosphere created. Finally, when selecting the
snapshot, the photographer may choose from a
variety of developing techniques the one he wishes
to adopt or, where appropriate, use computer
software.’ (para. 91)
CJEU, 1 December 2011, case C-145/10, Painer/Der Standard
Page 35
graphic user interface of a computer program may
be eligible for general copyright protection (para.
46)
but: no protection if the components of the
interface are dictated by their technical function
‘…where the expression of those components is
dictated by their technical function, the criterion of
originality is not met, since the different methods of
implementing an idea are so limited that the idea and
the expression become indissociable.’ (para. 49)
CJEU, 22 December 2010, case C-393/09, Softwarová
Term of protection
Term Directive 2006/116/EC
‘...shall run for the life of the author and for 70 years after his death, irrespective of the date when the work is lawfully made available to the public.’ (Art. 1(1) Term Directive)
Page 38
joint authorship (Art. 1(2))
●death of the last surviving author decisive
anonymous or pseudonymous works (Art. 1(3))
●making available to the public + 70 years
legal person designated as rightholder (Art. 1(4))
●making available to the public + 70 years
Term Directive 2006/116/EC
Exclusive rights
Page 40
exploitation rights• right of reproduction
• right of communication to the public
• distribution right
• harmonized in Arts. 2 to 4 Copyright Directive 2001/29
Two branches
moral rights• claim authorship
• object to any distortion, mutilation, modification or other derogatory action
• not harmonized in EU law, but in Art. 6bis of the Berne Convention
Page 41
authors (works)
performers (fixations of performances)
phonogram producers (phonograms)
producers of the first fixations of films
(original and copies of films)
broadcasting organisations (fixations of
broadcasts)
Rightholders of exploitation rights
copyright: author of a book
adaptation 1: translator
+ neighbouring rights adaptation 2:
scenarist
Copyright clusters
copyright: music composer
neighbouring right: singer
copyright: text
writerneighbouring
right: phonongram
producer
Copyright clusters
Reproduction right
‘Member States shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part.’ (Art. 2 Copyright Directive 2001/29/EC)
Right of communication to the public
‘Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.’ (Art. 3 Copyright Directive 2001/29/EC)
Page 46
standard situation:
●flexible place, fixed time (broadcasting)
EU right covers also:
●flexible place, flexible time (Internet)
but not covered (not harmonized):
●fixed place, fixed time (public
performance)
Communication to the public
Page 47
criterion of ‘direct physical contact’
‘Thus, in order to exclude such direct public
representation and performance from the scope of the
concept of communication to the public in the context
of the Copyright Directive, recital 23 in its preamble
explained that communication to the public covers all
communication to the public not present at the place
where the communication originates.’ (para. 201)
not harmonized: opera, theatre etc. (direct contact)
harmonized: loudspeakers in bars etc. (no direct
contact)
CJEU, 4 October 2011, cases C-403/08 and C-429/08, FA Premier League
Page 48
Sociedad General de Autores y Editores de
España (SGAE)
●responsible for the collective management of
copyright in Spain
●seeks compensation for the use of television sets
and the playing of ambient music within hotels
Rafael Hoteles
●uses cable to send previously received satellite
or terrestrial television signals to television sets
in hotel rooms
CJEU, 7 December 2006, case C-306/05, SGAE/Rafael Hoteles
Page 49
‘public’ = indeterminate number of potential viewers
occupants of hotel rooms not to be taken separately
‘…a general approach is required, making it necessary
to take into account not only customers in hotel rooms
[…] but also customers who are present in any other
area of the hotel and able to make use of a television
set installed there. It is also necessary to take into
account the fact that, usually, hotel costumers quickly
succeed each other. As a general rule, a fairly large
number of persons are involved, so that they may be
considered to be a public...’ (para. 38)
CJEU, 7 December 2006, case C-306/05, SGAE/Rafael Hoteles
Page 50
hotel = other organisation intervening to give
access to the protected work to its customers
‘…a communication made in circumstances such as
those in the main proceedings constitutes […] a
communication made by a broadcasting
organisation other than the original one. Thus, such
a transmission is made to a public different from the
public at which the original act of communication of
the work is directed, that is, to a new public.’ (para.
40)
communication to the public (+)
CJEU, 7 December 2006, case C-306/05, SGAE/Rafael Hoteles
Page 51
Società Consortile Fonografici (SCF)
●acts as a collecting agency and manages,
collects and distributes the royalties of its
associated phonogram producers
●seeks to collect royalties from dentists for the
playing of music in waiting rooms
Marco del Corso
●dentist with private practice in Turin
●plays radio music in his waiting room and does
not want to pay
CJEU, 15 March 2012, case 135/10, SCF/Marco del Corso
Page 52
‘public’ = indeterminate number of potential viewers
here: patients in succession
but: number of patients listening to the same
phonogram at one particular point in time too small
‘…as regards, the criterion of ‘a fairly large number of
people’, this is intended to indicate that the concept of
public encompasses a certain de minimis threshold,
which excludes from the concept groups of persons
which are too small, or insignificant.’ (para. 86)
and: no impact on dentist’s income (patients unlikely
to come for the phonograms)
CJEU, 15 March 2012, case 135/10, SCF/Marco del Corso
Distribution right
‘Member States shall provide for authors, in respect of the original of their works or of copies thereof, the exclusive right to authorise or prohibit any form of distribution to the public by sale or otherwise.’ (Art. 4 Copyright Directive 2001/29/EC)
Exhaustion
‘The distribution right shall not be exhausted within the Community in respect of the original or copies of the work, except where the first sale or other transfer of ownership in the Community of that object is made by the rightholder or with his consent.’ (Art. 4 Copyright Directive 2001/29/EC)
Page 55
copyright as a weapon against parallel imports?
(+) in case of national exhaustion
(-) in case of international exhaustion
solution in the EU: community-wide exhaustion
Netherlands: 100 EUR
Greece: 75
EUR
No internal market partitioning
Exceptions and limitations
Page 57
Art. 5 Copyright Directive 2001/29
mandatory exception:
● exemption of temporary acts of reproduction
optional exceptions:
● private copying
● use of copyrighted material by libraries, museums and
archives
● ephemeral recordings
● reproductions of broadcasts made by hospitals and
prisons
● illustrations for teaching or scientific research
● use for the benefit of people with a disability
Page 58
Art. 5 Copyright Directive 2001/29
optional exceptions:
● press privileges
● use for the purpose of quotations
● use for caricature, parody and pastiche
● use for the purposes of public security
● use for the proper performance or reporting of administrative, parliamentary or judicial proceedings
● use of political speeches and public lectures
● use during religious or official celebrations
Page 59
Art. 5 Copyright Directive 2001/29
optional exceptions:
● use of architectural works located permanently in public places
● incidental inclusions of a work in other material
● use for the purpose of advertising the public exhibition or sale of artistic works
● use in connection with the demonstration or repair of equipment
● use for the reconstruction of buildings
● additional national cases of use having minor importance
Page 60
Core rationales
freedom of expression and information
cultural participation: equal chances in the
information society (no ‘digital divide’)
• dissemination of information
• educational institutions, libraries, archives
regulation of industry practice (primary and
secondary markets, reconciliation of business
models)
Page 61
Harmonization?
‘Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 in the following cases:…
quotations for purposes such as criticism or review, provided that they relate to a work or other subject-matter which has already been lawfully made available to the public, that, unless this turns out to be impossible, the source, including the author's name, is indicated, and that their use is in accordance with fair practice, and to the extent required by the specific purpose;…’ (Art. 5(3)(d) Copyright Directive 2001/29/EC)
Page 62
Permissible quotation?
Three-step test
‘The exceptions and limitations provided for in paragraphs 1, 2, 3 and 4 shall only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder.’
(Art. 5(5) Copyright Directive 2001/29/EC)
Meaning of the testcertain special case
● specific form of use, limited number of beneficiaries
● room for considering policy justification?
no conflict with a normal exploitation
● currently exploited and potential future markets
● room for normative considerations?
no unreasonable prejudice to legitimate interests
● refined proportionality test
● unreasonable prejudice can be reduced to reasonable
level by providing for the payment of equitable
remuneration
broad exclusive
rights
exhaustive enumeration of exceptions
three-step test
Overview of EU regulation of exceptions
Page 66
exemption of temporary copying under Art. 5(1)
Copyright Directive invoked as a defence by Infopaq
standard for interpretation:
‘…the provisions of a directive which derogate from a
general principle established by that directive must
be interpreted strictly.’ (para. 56)
general principle here: right of reproduction
derogation: exemption of temporary copying
CJEU, 16 July 2009, case C-5/08, Infopaq/Danske Dagblades Forening
Page 67
impact of the three-step test:
‘This is all the more so given that the exemption
must be interpreted in the light of Article 5(5) of
Directive 2001/29, under which that exemption is to
be applied only in certain special cases which do
not conflict with a normal exploitation of the work
or other subject-matter and do not unreasonably
prejudice the legitimate interests of the
rightholder.’ (para. 58)
always restrictive reading required?
CJEU, 16 July 2009, case C-5/08, Infopaq/Danske Dagblades Forening
Page 68
not necessarily, fair balance to be safeguarded
‘In accordance with its objective, [the exemption of
temporary copying under Article 5(1) of Directive
2001/29] must allow and ensure the development
and operation of new technologies and safeguard a
fair balance between the rights and interests of
right holders, on the one hand, and of users of
protected works who wish to avail themselves of
those new technologies, on the other.’ (para. 164)
CJEU, 4 October 2011, cases C-403/08 and C-429/08, FA Premier League
Page 69
particularly a fair balance with regard to
competing fundamental rights
‘Article 5(3)(d) of Directive 2001/29 [= right of
quotation] is intended to strike a fair balance
between the right to freedom of expression of
users of a work or other protected subject-matter
and the reproduction right conferred on authors.’
(para. 134)
CJEU, 1 December 2011, case C-145/10, Painer/Der Standard
Fair compensation
CJEU, 21 October 2010, case C-467/08, Padawan/SGAE
‘Member States may provide for exceptions or limitations to the reproduction right provided for in Article 2 in the following cases:…
in respect of reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the rightholders receive fair compensation which takes account of the application or non-application of technological measures referred to in Article 6 to the work or subject-matter concerned;…’ (Art. 5(2)(b) Copyright Directive 2001/29/EC)
Page 72
CJEU, 21 October 2010, case C-467/08, Padawan/SGAE
CJEU, 21 October 2010, case C-467/08, Padawan/SGAE
Prejudicial question 4:
‘If a Member State adopts a private copying ‘levy’ system, is the indiscriminate application of that ‘levy’ to undertakings and professional persons who clearly purchase digital reproduction devices and media for purposes other than private copying compatible with the concept of ‘fair compensation’?’ (para. 19)
Page 74
CJEU, 21 October 2010, case C-467/08, Padawan/SGAE
Fair compensation is an autonomous concept of EU law which must be interpreted uniformely in all Member States. (para. 37)
Notion and level of fair compensation are linked to the harm resulting from the private copying. (para. 40)
= If exception does not cover downloading from illegal sources, then no compensation is due for this.
● private copying levy is not intended to provide general compensation for losses in the digital environment.
In principle, it is for the user to make good the harm related to the private copying by financing the compensation. (para. 45)
Page 75
CJEU, 21 October 2010, case C-467/08, Padawan/SGAE
However, given the practical difficulties in identifying and charging private users, a levy system can be introduced at the national level. (para. 46)
The industry can pass on the amount of the levy to private users so that the burden will ultimately be borne by them. (para. 49)
But: distinction between private/professional to be drawn
‘…the indiscriminate application of the private copying levy, in particular with respect to digital reproduction equipment, devices and media not made available to private users and clearly reserved for uses other than private copying, is incompatible with Directive 2001/29.’ (para. 59)
Page 76
what levy scheme for online use?
CJEU, 21 October 2010, case C-467/08, Padawan/SGAE
Protection of technological measures
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concerns of the media industry (particularly music and film)
weapon against digital ‘piracy’ (particularly filesharing platforms)
stimulation of e-commerce
individual payment (pay-per-use)
hope that new business models will emerge (‘celestial jukebox’)
Background and rationale
Technological measures
‘…means any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works or other subject matter, which are not authorised by the rightholder of any copyright or any right related to copyright as provided for by law or the sui generis right provided for in Chapter III of Directive 96/9/EC.’
Art. 6 Copyright Directive 2001/29/EC: protected against circumvention
Rights management information‘…means any information provided by rightholders which identifies the work or other subject-matter referred to in this Directive or covered by the sui generis right provided for in Chapter III of Directive 96/9/EC, the author or any other rightholder, or information about the terms and conditions of use of the work or other subject-matter, and any numbers or codes that represent such information…’
Art. 7 Copyright Directive 2001/29/EC: protected against removal and altering
Page 84
scope of copyright/related
rights = scope of protection
against circumvention
Underlying international concept (WIPO Copyright Treaty)
Page 85
prohibition limited to illicit
circumvention
prohibition extended to preparatory
acts
Feasible in practice?
Art. 6(2) Copyright Directive
‘…protection against the manufacture, import, distribution, sale, rental, advertisement for sale or rental, or possession for commercial purposes of devices, […] or the provision of services which:
(a) are promoted, advertised or marketed for the purpose of circumvention of, or
(b) have only a limited commercially significant purpose or use other than to circumvent, or
(c) are primarily designed […] for the purpose of enabling or facilitating the circumvention of,
any effective technological measures.’
Enforcement
Page 88
How to fight illegal filesharing?
Page 89
Measures against the platform itself?
Page 90
Measures against online intermediaries instead?
Art. 8(3) Copyright Directive
‘Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.’
Page 92
CJEU, 24 November 2011, case C-70/10, Scarlet/Sabam
Scarlet
• internet access provider
• customers involved in illegal downloads from
P2P-platforms
Sabam
• seeks to impose filtering obligation on Scarlet
• namely making it impossible to send or
receive files containing musical works (deep
packet inspection)
Page 93
No obligation of deep packet inspection
• injunction against intermediaries possible on the
basis of Art. 8(3) Copyright Directive (para. 31)
• but: ‘fair balance’ required between IP rights
and freedom to conduct a business laid down in
Art. 16 of the Charter (para. 46)
• obligation of filtering system irreconcilable with
this requirement (para. 49)
= general monitoring obligation incompatible
with Art. 15(1) E-Commerce Directive (para. 40)
CJEU, 24 November 2011, case C-70/10, Scarlet/Sabam
Page 94
No obligation of deep packet inspection
• potential infringement of protection of
personal data and right to receive
information of ISP customers (para. 50)
• also potential encroachment upon freedom of
information because of inadequate
distinction between lawful and unlawful
content: copyright exceptions may be
disregarded (para. 52)
• required ‘fair balance’ not ensured (para. 53)
CJEU, 24 November 2011, case C-70/10, Scarlet/Sabam
filtering:
deep packet inspection goes too
far
blocking:
blocking of entire platform an alternative?
CJEU, 24 November 2011, case C-70/10, Scarlet/Sabam
Databases
Database
‘For the purposes of this Directive, ‘database’ shall mean a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means.’ (Art. 1(1) Database Directive 96/9/EC)
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copyright protection
●original databases
●copyrighted material in the database
sui generis database protection
●in case of substantial investment
protection against unfair competition
Protection instruments
Rationale underlying sui generis protection
Stimulating investment
‘Whereas there is at present a very great imbalance in the level of investment in the database sector both as between the Member States and between the Community and the world’s largest database-producing third countries;…’ (Recital 11, Database Directive 96/6/EC)
Art. 7(1) Database Directive
‘Member States shall provide for a right for the maker of a database which shows that there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents…’
Page 105
‘...fifteen years from the first of January of the year following the date of completion.’ (Art. 10(1))
if made available to the public prior to the expiry of the term following from the completion date (Art. 10(2))
●15 years calculated on the basis of the date of making available
constant investment makes evergreening possible (Art. 10(3))
●new term of protection results from substantial new investment in the contents of the database
Term of protection
Substantial investment
Page 107
British Horseracing Board
●manages the UK horseracing industry
●compiles and maintains an online database with
diverse information (races, horses, jockeys,
owners etc.)
William Hill
●provides off-course bookmaking services
● is a subscriber to the BHB-database
●uses BHB-data for his business
CJEU, 9 November 2004, case C-203/02, BHB/William Hill
Page 108
only relevant: investment in the database as such
• ‘...resources used to seek out existing independent
materials and collect them in the database…’ (para. 31)
irrelevant: investment in contents creation
• ‘The purpose of the protection by the sui generis right
[…] is to promote the establishment of
storage and processing systems for existing information
and not the creation of materials capable of being
collected subsequently in a database.’ (para. 31)
CJEU, 9 November 2004, case C-203/02, BHB/William Hill
Page 109
irrelevant ‘creation of materials’ comprises
●selection of the horses admitted to run
●establishing lists of these horses
●verification of information in that context
= no relevant investment in ‘obtaining’ or
‘verification’ of data in the sense of the sui
generis protection system (para. 38-41)
Substantial investment
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CJEU recognizing spin-off theory?
Exclusive rights
Page 112
Infringement
extraction
(reproduction) or re-
utilisation (making available)
of a qualitatively or quantitatively
substantial part
Art. 7(1) and (2) DBD
extraction or re-utilisation:
insubstantial parts
repeated and systematic
normal exploitation/ unreasonable prejudice
Art. 7(5) DBD
Page 113
Albert-Ludwigs-Universität Freiburg:
●invested substantially (€ 34.900 sufficient, para. 24) in
‘Freiburg Anthology’, a collection of 1100 German
poems indicating author, title, opening line and
publication year
Directmedia:
●markets CD ‘1000 poems everyone should have’
●used Freiburg Anthology as a guide, but assessed that
guide critically, omitted certain poems, added others
●total overlap: 856 poems
CJEU, 9 October 2008, case C-304/07, Directmedia/Universität Freiburg
Page 114
‘extraction’ = act of transfer
‘The decisive criterion in this respect is to be found in the
existence of an act of ‘transfer’ of all or part of the
contents of the database concerned to another medium...’
(para. 36)
transfer (+): technical process of copying
transfer (+): simple manual process
transfer (+): adaptation of database contents (para. 39)
‘... the particular risk for database makers of the
increasing use of digital recording technology.’ (para. 49)
CJEU, 9 October 2008, case C-304/07, Directmedia/Universität Freiburg
Page 115
transfer (+): irrespective of objective pursued (para. 46)
‘Thus, it is of little importance that the act of transfer
in question is for the purpose of creating another
database, whether in competition with the original
database or not, and whether the same or a different
size from the original, nor is it relevant that the act is
part of an activity, whether commercial or not, other
than the creation of a database .’ (para. 47)
protection of existing material impeding production of new databases?
CJEU, 9 October 2008, case C-304/07, Directmedia/Universität Freiburg
Page 116
exclusive rights to data
as such?
Excessive sui generis protection?
Exceptions and limitations
Page 118
optional exceptions:
●extraction for private purposes of the contents of non-electronic databases
●extraction for purposes of illustration for teaching or scientific research
●extraction and/or re-utilization for the purposes of public security or administrative/judicial procedures
access to public documents (Art. 13 DBD)
Art. 9 Database Directive 96/9/EC
Free access to public databases
‘This Directive shall be without prejudice to provisions concerning in particular […] trade secrets, security, confidentiality, data protection and privacy, access to public documents, and the law of contract.’ (Art. 13 Database Directive 96/6/EC)
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