DIRECTIVE 96/9/EC (Database Directive) of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases [Introductory remarks] 1. General. The Database Directive has created a two-tier protection regime for electronic and non-electronic databases. Member States are to pro- tect databases by copyright as intellectual creations (Chapter 2), and provide for a sui generis right (database right) to protect the contents of a database in which the producer has substantially invested (Chapter 3). Both rights may apply cumulatively if the prerequisites for both regimes are fulfilled. The introduction of sui generis protection was considered necessary after supreme courts in the Netherlands and the US had held that copyright does not protect databases reflecting merely economic investment or intellectual effort (see Feist (US) and Van Dale (Netherlands)). Prior to implementation, intellectual property protection for non-original compilations existed in just a few Member States (the United Kingdom, Denmark, Sweden and the Nether- lands). Many Member States provided only for unfair competition remedies, to be applied in special circumstances, or no remedies at all. However, the absence of a harmonized legal framework for unfair competition in Europe necessitated the introduction of a sui generis right to complement copyright protection for databases (recital 6). 2. Harmonization. The Directive is based on arts. 47(2), 55 and 95 of the EC Treaty, and is aimed at harmonizing the legal protection of databases across the European Community. The copyright chapter of the Directive harmonizes the originality standard for databases, which prior to the implementation dif- fered greatly between Member States, especially between countries of the authors’ right tradition where a measure of creativity, personal character or personal imprint was required, and the two Member States (Ireland and the UK) of the British copyright tradition where mere skill and labour sufficed. The sui generis database right serves in part to compensate the latter two States for having to raise the originality standard; databases resulting merely from skill and labour may no longer receive copyright protection, but will benefit from database right protection instead. 3. Legislative history. The Directive has its roots in the European Com- mission’s Green Paper on Copyright and the Challenge of Technology (1988) in which the Commission first suggested that copyright might be inadequate in protecting database producers, and a special protection regime might be needed. On 13 May 1992, the Commission presented an Initial Proposal to the Council, which was accepted by the European Parliament in first reading Hugenholtz 379 Database Directive, preamble subject to a large number of amendments. This led to an Amended Proposal, which was presented by the Commission on 4 October 1993. On 10 July 1995, the Council adopted a Common position, which was markedly differ- ent from the amended proposal, and accepted by the European Parliament in second reading on 14 December 1995. On 11 March 1996, the Directive was finally adopted. A report assessing the economic impact of the sui generis right pursuant to art. 16(3), was published by the European Commission on 12 December 2005 (Report on the Database Directive). The report is skepti- cal about the beneficial effect the introduction of the sui generis right has had on the production of databases in the Community. It proposes various future policy options, including repealing the Directive. 4. International context. (a) Database copyright. Art. 2(5) of the Berne Convention protects ‘collections of literary or artistic works such as ency- clopaedias and anthologies’, but denies copyright protection to ‘news of the day or to miscellaneous facts having the character of mere items of press information’ (see art. 2 BC, notes 6 and 9). While the BC thus leaves open the question of copyright protection for compilations of unprotected facts, art. 5 of the WIPO Copyright Treaty and art. 10(2) TRIPS, more broadly, require protection for ‘compilations of data or other material’, which ‘by reason of the selection or arrangement of their contents constitute intellectual creations’ (see art. 5 WCT, note 2). (b) Sui generis right. The sui generis right is a legal invention of the European Commission, and has never become an international standard despite an attempt by WIPO to propose a ‘WIPO Database Treaty’ in 1996. Nevertheless, a number of countries outside the EU, especially those with trade-related ties with the EU such as the EEA states and Turkey, have also adopted the sui generis right. Variants of the right exist in Russia, South Korea and Mexico. [Bibliography] T. Aplin, ‘The ECJ Elucidates the Database Right’ (2005) Intellectual Property Quarterly 204-221 A.C. Beunen, Protection for Databases: The European Database Direc- tive and Its Effects in the Netherlands, France and the United Kingdom (Wolf Legal Publishers 2007) L.A. Bygrave, ‘The Data Difficulty in Database Protection’ (2012) EIPR 25 M.J. Davison, The Legal Protection of Databases (Cambridge University Press 2003) M.J. Davison & P.B. Hugenholtz, ‘Football Fixtures, Horse Races and Spin-offs: The ECJ Domesticates the Database Right’ (2005) EIPR 113-118 E. Derclaye, ‘What is a Database? A Critical Analysis of the Definition of a Database in the European Database Directive and Suggestions for an 380 Hugenholtz Database Directive, preamble International Definition’ (2002) Journal of World Intellectual Property 981–1011 E. Derclaye, ‘Database Sui Generis Right: What Is a Substantial Invest- ment? A Tentative Definition’ (2005) IIC 2-30 E. Derclaye, ‘IPR on Information and Market Power: Comparing the Euro- pean and American Protections of Databases’ (2007) IIC 275-298 E. Derclaye, The Legal Protection Of Databases: A Comparative Analysis (Edward Elgar Publishing 2008) J.L. Gaster, ‘The New EU Directive Concerning the Legal Protection of Databases’ (1997) 20(4) Fordham International Law Journal 1129-1150 J. Gaster, ‘“Obtinere” of Data in the Eyes of the ECJ. How to Interpret the Database Directive after British Horseracing Board Ltd et al. v. William Hill Organisation Ltd.’ (2005) Computer Law Review International (CRi) 129-135 P.B. Hugenholtz, ‘Implementing the Database Directive’ in Jan J.C. Kabel & Gerard J.H.M. Mom (eds.), Intellectual Property and Information Law, Essays in Honour of Herman Cohen Jehoram (Kluwer Law International 1998) A. Kur, et al., ‘First Evaluation of Directive 96/9/EC on the Legal Protec- tion of Databases’ (2006) IIC 551-558 [Preamble] The European Parliament and the Council of the European Union, Having regard to the Treaty establishing the European Community, and in particular Article 57 (2), 66 and 100a thereof, Having regard to the proposal from the Commission,1 Having regard to the opinion of the Economic and Social Committee,2 Acting in accordance with the procedure laid down in Article 189b of the Treaty,3 (1) Whereas databases are at present not sufficiently protected in all Member States by existing legislation; whereas such protection, where it exists, has different attributes; 1. OJ No. C 156, 23 June 1992, p. 4 and OJ No. C 308, 15 November 1993, p. 1. 2. OJ No. C 19, 25 January 1993, p. 3. 3. Opinion of the European Parliament of 23 June 1993 (OJ No. C 194, 19 July 1993, p. 144), Common Position of the Council of 10 July 1995 (OJ No. C 288,30 October 1995, p. 14), Decision of the European Parliament of 14 December 1995 (OJ No. C 17, 22 January 1996) and Council Decision of 26 February 1996. Hugenholtz 381 Database Directive, preamble (2) Whereas such differences in the legal protection of databases of- fered by the legislation of the Member States have direct negative effects on the functioning of the internal market as regards databases and in particular on the freedom of natural and legal persons to provide on-line database goods and services on the basis of harmonized legal arrange- ments throughout the Community; whereas such differences could well become more pronounced as Member States introduce new legisla- tion in this field, which is now taking on an increasingly international dimension; (3) Whereas existing differences distorting the functioning of the in- ternal market need to be removed and new ones prevented from arising, while differences not adversely affecting the functioning of the internal market or the development of an information market within the Com- munity need not be removed or prevented from arising; (4) Whereas copyright protection for databases exists in varying forms in the Member States according to legislation or case-law, and whereas, if differences in legislation in the scope and conditions of protection remain between the Member States, such unharmonized intellectual property rights can have the effect of preventing the free movement of goods or services within the Community; (5) Whereas copyright remains an appropriate form of exclusive right for authors who have created databases; (6) Whereas, nevertheless, in the absence of a harmonized system of unfair-competition legislation or of case-law, other measures are required in addition to prevent the unauthorized extraction and/or re- utilization of the contents of a database; (7) Whereas the making of databases requires the investment of con- siderable human, technical and financial resources while such databases can be copied or accessed at a fraction of the cost needed to design them independently; (8) Whereas the unauthorized