Legal protection of databases
How are databases protected by French law?
Databases are extremely important assets for the majority of digital businesses. Indeed, many of them provide services that are based on access, by subscription or free but financed by advertising, to databases created by them.
The initial creation as well as the updates of the database require a continuous effort and a significant investment, as the legislator protected on the basis of a 1996 Community Directive.
Databases are protected both by a specific right, said Sui Generis, for producers, but also by copyright. The two protections are independent and operate without having an impact on each other.
First of all, however, it is necessary to question the composition of protected databases.
Article L112-3 of the Intellectual Property Code defines databases as follows:
“Database means a collection of works, data, or other independent items that are arranged in a systematic or methodical manner, and individually accessible by electronic or other means.”
The general idea is that of grouping information according to logical and rational rules, and then made available by any means to an audience.
Anyone who wants to create a database should ask themselves about its composition: in fact, they should not use data protected by intellectual property rights (in this case, generally copyright) without authorization, in accordance with Article L122-4 of the Intellectual Property Code. Trademarks, patents, or even personal data may also be concerned and require the agreement of the right holders.
However, copyright exceptions are favorable to the producer of the database: it is possible, based on the short quotation exception of Article L122-5 of the Intellectual Property Code, to integrate extracts from works protected by copyright into the database, subject to citing the author as well as the source. These quotations are in fact intended to inform the public.
The data integrated into the databases is frequently produced by the company that provides access to the service, which by nature limits the risk in terms of intellectual property. They may also come from another third party database. In this case, it is necessary to have the permits in order to avoid infringing the rights of another producer.
However, it is necessary to carry out a preventive audit of the data integrated into the database in order to avoid risks at the outset.
The directive of 11 March 1996 on the legal protection of databases, transposed in 1998 in France, guarantees a right Sui Generis for the benefit of database producers.
This right aims to ensure the protection of an investment in obtaining, verifying, or presenting the content of a database during the legal period of protection (Item L341-1). This investment is calculated taking into account the” resources devoted to finding existing elements and assembling them in the database ”, according to the CJEU in its Apis-Hristovich stop from 2009. On the other hand, the creation of content is surprisingly not considered an investment by case law.
The protection relates to the content and not to the structure of the database, which is protected by copyright.
The duration of the producer's right is 15 years from the completion of the constitution of the database and can be extended for 15 years if it is the subject of a substantial investment beyond simple updating (Item L342-5 of the Intellectual Property Code).
The rights benefit the natural or legal person who takes the initiative and insures the risk of the investments corresponding to the creation of the content of a database (article L341-1 of the Intellectual Property Code).
Two capacities are guaranteed to the producer by the article L342-1 of the CPI :
However, exceptions are provided for by Article L342-3 of the CPI, which includes, among other things, that the producer cannot prohibit the private copying, educational or educational use, extraction and reuse of an insubstantial part of the database by a person who has lawful access to it.
Article L343-4 of the Intellectual Property Code provides for a penalty of 3 years in prison and a fine of 300,000 euros, in case of unauthorized use of the database.
Copyright protection applies from classical way, based on the originality of the presentation of the database.
This means that the author has moral rights (disclosure, authorship, respect for the work, withdrawal and repentance) as well as economic rights (exploitation, reproduction, representation, continuation, destination), like all copyright holders.
The applicable sanctions are also those of copyright: counterfeiting that may justify damages and criminal liability.
The protectable elements of a database are those related to the structure of the database. These are the elements that organize the content.
The content itself does not matter for copyright.
Databases are intellectual works specific to their author by the choice or arrangement of materials. The classification itself must be original to be protected by copyright: individual creative choices must therefore be apparent.
A simple alphabetical or purely thematic ranking will not be sufficient. However, originality is assessed on a case-by-case basis.
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