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146 Final. Encl.: SWD(2018) Council of the European Union Brussels, 27 April 2018 (OR. en) 8466/18 PI 44 CULT 48 COVER NOTE From: Secretary-General of the European Commission, signed by Mr Jordi AYET PUIGARNAU, Director date of receipt: 26 April 2018 To: Mr Jeppe TRANHOLM-MIKKELSEN, Secretary-General of the Council of the European Union No. Cion doc.: SWD(2018) 146 final Subject: COMMISSION STAFF WORKING DOCUMENT Evaluation of Directive 96/9/EC on the legal protection of databases Delegations will find attached document SWD(2018) 146 final. Encl.: SWD(2018) 146 final 8466/18 LK/np DGG 3B EN EUROPEAN COMMISSION Brussels, 25.4.2018 SWD(2018) 146 final COMMISSION STAFF WORKING DOCUMENT Evaluation of Directive 96/9/EC on the legal protection of databases {SWD(2018) 147 final} EN EN Table of Contents 1. INTRODUCTION .................................................................................................................. 3 1.1. Purpose of the evaluation ................................................................................................ 3 1.2. Scope of the evaluation .................................................................................................... 4 2. BACKGROUND TO THE INTERVENTION ...................................................................... 4 2.1 Context of the EU intervention ......................................................................................... 4 2.2 Intervention’s objectives and logic ................................................................................... 5 2.3 Overview of the Database Directive’s provisions ............................................................ 7 3. IMPLEMENTATION/STATE OF PLAY ............................................................................. 8 4. METHOD ............................................................................................................................... 9 4.1 Study to support the evaluation of the Database Directive .............................................. 9 4.2 Stakeholder consultations ................................................................................................. 9 4.3 Literature review ............................................................................................................. 10 4.4 Limitations and robustness of the findings ..................................................................... 11 5. ANALYSIS AND ANSWERS TO THE EVALUATION QUESTIONS ........................... 12 5.1 Current situation ............................................................................................................. 12 5.2 Effectiveness ................................................................................................................... 13 5.2.1 Has the Database Directive eliminated the differences between Member States in the legal protection of databases? ..................................................................................... 13 5.2.2 Has the Database Directive stimulated the investments into the creation of databases? ......................................................................................................................... 15 5.2.3 Has the balance between the legitimate interests of database makers and users been safeguarded? ..................................................................................................................... 19 5.3 Efficiency ........................................................................................................................ 21 5.3.1 Overall analysis of the costs and benefits and regulatory burden induced by the Database Directive ............................................................................................................ 21 5.3.2 Scope of the sui generis right: current situation and simplification potential. ........ 24 5.3.3 Legal uncertainties about the sui generis right ........................................................ 26 5.3.4 Other protection mechanisms for database makers ................................................. 31 5.3.5 Ongoing Digital Single Market legislation’s impact on efficiency ......................... 34 5.4 Relevance ........................................................................................................................ 35 5.4.1 Machine-generated data, digitisation and the sui generis right ............................... 35 5.4.2 What would be the consequences if the current sui generis right extended broadly into the data economy? ..................................................................................................... 37 1 5.5 Coherence ....................................................................................................................... 40 5.5.1 Interplay with the Public Sector Information Directive ........................................... 40 5.5.2 Coherence with EU’s Open Data policies for research activities ............................ 42 5.5.3 Coherence with other relevant copyright acquis ..................................................... 43 5.5.4 Coherence with the Trade Secrets Directive ............................................................ 43 5.6 What is the EU added value of the intervention? ........................................................... 45 6. CONCLUSIONS .................................................................................................................. 46 Annex 1: Procedural information ............................................................................................. 48 Annex 2: Stakeholder consultation: the Synopsis Report ........................................................ 51 Annex 3: Selected Evidence from the Study ............................................................................ 61 Annex 4: Selected Bibliography .............................................................................................. 83 Annex 5: Legal Sources ........................................................................................................... 85 Annex 6: Research Questions .................................................................................................. 87 2 1. INTRODUCTION 1.1. Purpose of the evaluation This Staff Working Document provides the results of the REFIT1 evaluation of Directive 96/9/EC on the legal protection of databases (‘the Database Directive’)2. In line with the Better Regulation guidelines3, the evaluation assesses the effectiveness, efficiency, relevance, coherence and EU added value of the Database Directive, analysing whether it remains fit for purpose in the new legal, economic and technological environment. The evaluation also arises from Article 16(3) of the Database Directive, which specifies that the Commission should in particular examine periodically whether the application of this sui generis right contained in the Database Directive, which protects ‘non-original’ sui generis databases, has led to significant interference with free competition. The last evaluation report of the Database Directive, (hereinafter ‘the 2005 Report‘) that took place in 20054, concluded that, while the sui generis right had no proven positive or negative effects on the growth of the ‘database industry’, the Database Directive had largely achieved its harmonisation objectives. Therefore, despite the conceptual shortcomings of the right, no ‘significant administrative or other regulatory burdens on the database industry or any other industries that depend on having access to data and information’5 had been detected, and so no intervention was deemed necessary. An important factor highlighted by the 2005 Report was the limitation imposed by the seminal 2004 rulings from the Court of Justice of the European Union (CJEU)6. These, it concluded, significantly reduced the scope of the sui generis right to ‘primary’ producers of databases, which at that time were generally part of copyright industries (e.g. publishing companies). If database production was only secondary to the main activity of the entity, it was assumed that this entity would be left out of the scope of protection. This would avoid any significantly negative situations where data and information would be locked up to the detriment of overall social welfare (e.g. access for lawful competitors, research organisations). The main purpose of this evaluation is to assess whether these conclusions are still valid. It conducts a more in-depth analysis of the potential legal causes behind the economic 1 The Regulatory Fitness and Performance Programme, or REFIT, is the Commission’s programme for ensuring that EU legislation remains fit for purpose and delivers the results intended by EU lawmakers. 2 Directive 96/9/EC of the European Parliament and of the Council of March 1996 on the legal protection of databases. 3 European Commission, Better Regulation: Guidelines and Toolbox. https://ec.europa.eu/info/better-regulation- guidelines-and-toolbox_en. 4 European Commission,, DG Internal Market, First evaluation of the Directive 96/9/EC on the legal protection of databases (2005). 5 Ibid p. 6. 6 Fixtures Marketing Ltd v. Oy Veikkaus Ab (C-46/02, 9/11/2004), Fixtures Marketing Ltd v. Svenska Spel Ab (C-338/02, 9/11/2004) British Horseracing Board Ltd v. William Hill (C-203/02, 9/11/2004) Fixtures Marketing Ltd v. OPAP (C-444/02, 9/11/2004). 3 performance of the sui generis right and places that analysis in the context of the data economy. Indeed, in its 2017 communication, Building a European Data Economy7, the Commission, while
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