cartome.org
22 August 2001
National Research
Council, 1999
APPENDIXES
ROBERT J. SERAFIN (chair) is the director of the National Center for Atmospheric Research (NCAR). Dr. Serafin began his career at Hazeltine Research Corporation where he worked on the design and development of high-resolution radar systems. This was followed by 10 years at the IIT Research Institute and Illinois Institute of Technology. He then joined NCAR as manager of the Field Observing Facility in 1973 and in 1980 became director of the Atmospheric Technology Division, which is responsible for all of NCAR's observational research and research support facilities, used by scientists in universities and laboratories throughout the world. In 1989 he was appointed as NCAR's director. The holder of three patents, Dr. Serafin has published approximately 50 technical and scientific papers and established the Journal of Atmospheric and Oceanic Technology, and was its co-editor for several years. He has served on several National Research Council (NRC) panels and committees, and he chaired the NRC committee on National Weather Service Modernization. He is a member of the National Academy of Engineering, a fellow of the American Meteorological Society, and a senior member of the Institute of Electrical and Electronics Engineers. Dr. Serafin received his BS, MS, and PhD degrees in electrical engineering from Notre Dame University, Northwestern University, and Illinois Institute of Technology, respectively.
I. TROTTER HARDY is professor of law at the College of William & Mary School of Law, where he specializes in intellectual property law, law and computers, and tort law. He recently wrote a major report, "Sketching the Future of Copyright in a Networked World," for the Copyright Office and has published extensively on issues relating to intellectual property law in the digital environment. Mr. Hardy holds a BA from the University of Virginia, an MS from American University, and a JD from Duke University, Order of the Coif.
MAUREEN C. KELLY is vice president for planning at BIOSIS, the largest abstracting and indexing service for the life sciences community. She has worked in different capacities for BIOSIS since 1969. Previously she had production responsibility for the bibliographic and scientific content of BIOSIS products. While in that position, she led the team that developed the system for capturing and managing indexing data in support of BIOSIS's new relational indexing. Ms. Kelly has authored a number of papers on managing and accessing biological information. She is currently secretary of the American Association for the Advancement of Science Section on Information, Computing, and Communication. She has served on various professional society research and publishing committees, including participating in the National Academy of Sciences E-Journal Summit meetings over the past two years. Ms. Kelly has a BA degree from Rutgers University.
PETER R. LEAVITT is a consultant and former chairman and chief executive officer of Weather Services Corp., where he has developed online real-time meteorological databases for national and international agricultural and commodity services. He has a BS in meteorology from the Massachusetts Institute of Technology. Mr. Leavitt served previously on two NRC committees, as well as on several government advisory committees regarding data use and research issues in meteorology.
LEE E. LIMBIRD is associate vice chancellor for research at Vanderbilt University and chair of the Department of Pharmacology. Her responsibilities as associate vice chancellor include development of new intra- and interinstitutional initiatives for research, with a focus on research development in genetics and genomics; neuroscience; and structural biology, broadly defined to include biophysics and bioengineering. The Office of Grants Management and Technology Transfer also represents areas of her responsibility. Dr. Limbird received a BA in chemistry from the College of Wooster and a PhD in biochemistry from the University of North Carolina. Her area of research has been in the molecular pathways of signal transduction by G Protein-coupled receptors using biochemical, cellular, and genetic strategies, including genetically modified mice.
PHILIP LOFTUS is vice president and director of Worldwide Information Services Architecture and Technology for Glaxo Wellcome where he is responsible for both the information services infrastructure and global information management. From 1996 to 1998, he served as vice president and director of Worldwide R&D Information Systems and was responsible for developing and implementing a global information system strategy for R&D. Prior to that, he was executive director for Research Information Systems at Merck Research Laboratories, and from 1976 to 1993 he was a vice president for R&D Information Systems and a computational scientist at ICI. Dr. Loftus has a BSc in chemistry and a PhD in conformational isomerism from the University of Liverpool, and he was a Fullbright Hayes Postdoctoral Fellow at the California Institute of Technology in 1974-1975. He holds a postgraduate certificate in education from the University of Liverpool. He has published extensively in the area of information technology applications for pharmaceutical research.
HARLAN J. ONSRUD is professor in the Department of Spatial Information Science and Engineering at the University of Maine and a research scientist with the National Center for Geographic Information and Analysis (NCGIA). He received BS and MS degrees in civil engineering from the University of Wisconsin and a JD from the University of Wisconsin Law School. His research focuses on (1) analysis of legal and institutional issues affecting the creation and use of digital databases and the sharing of geographic information, (2) assessing utilization of GIS and the social impacts of the technology, and (3) developing and assessing strategies for supporting the diffusion of geographic information innovations. Mr. Onsrud has co-led major multiyear NCGIA research initiatives on the use and value of geographic information, institutions sharing geographic information, and law, information policy, and spatial databases. Mr. Onsrud is a licensed engineer, lawyer, and land surveyor.
HARVEY S. PERLMAN is a professor of law and former dean of the University of Nebraska College of Law. He is an expert in trademark law and unfair competition law. In addition to writing many articles in these areas, Mr. Perlman has co-authored Legal Regulation of the Competitive Process: Cases, Materials and Notes on Unfair Business Practices, which is now in its sixth edition under the title Intellectual Property and Unfair Competition (1998). He also was the co-reporter for the American Law Institute's Restatement (Third) of Unfair Competition and is a member of the National Conference of Commissioners on Uniform State Laws, which has been considering changes to the Uniform Commercial Code Article 2(B) regarding private contracts for intellectual property. Mr. Perlman received his BA and JD from the University of Nebraska in 1963 and 1966, respectively.
ROBERTA P. SAXON is a patent agent at Skjerven, Morrill, MacPherson, Franklin & Friel, LLP, a law firm specializing in intellectual property in San Jose, California. Prior to that, she was director of the chemistry laboratory at SRI International, where she supervised research in advanced materials, atmospheric chemistry, computational chemistry, and atomic, molecular, and optical physics and performed research in those areas for more than 20 years. Dr. Saxon has a BA in chemistry from Cornell University and an MS and a PhD in chemical physics from the University of Chicago. She is vice chair of the Panel on Public Affairs for the American Physical Society, and she previously served on an NRC study for a research strategy for atomic, molecular, and optical sciences.
SUZANNE SCOTCHMER is a professor of economics and public policy at the University of California, Berkeley. Her broad fields of research are in economic theory and industrial organization, with current emphasis on intellectual property, particularly as it relates to cumulative innovations, digital content, and decentralized mechanisms by which firms share information. Dr. Scotchmer received her PhD in economics from the University of California, Berkeley in 1980 and her MA in statistics in 1979.
MARK STEFIK is a principal scientist at the Xerox Palo Alto Research Center, where he focuses on trusted system approaches for creating, protecting, and reusing digital property in the network context. His current and past research activities include research on reasoning with constraints, and paradigms of programming, as well as applications of artificial intelligence and computer science to problems in molecular genetics, VLSI circuit design, configuration of computer systems, and systems for supporting collaborative processes in work groups. Dr. Stefik's book, Internet Dreams: Archetypes, Myths, and Metaphors, was published by MIT Press in 1996. Dr. Stefik received his BS and PhD from Stanford University.
MARTHA E. WILLIAMS is director of the Information Retrieval Research Lab and a professor of Information Science at the University of Illinois at Urbana-Champaign. Her research interests include digital database management, online retrieval systems, systems analysis and design, chemical information systems, and electronic publishing. She has published widely on these topics and has been editor of the Annual Review of Information Sciences and Technology (since 1975), Computer Readable Databases: A Directory & Data Sourcebook (1976-1987), and Online Review (since 1977). Professor Williams was chair of the Board of Engineering Information, Inc., from 1980 to 1988, was appointed to the National Library of Medicine's Board of Regents from 1978 to 1981 and served as chair of the board in 1981. In addition, she served on several NRC committees, including the Numerical Data Advisory Board (1979-1982). She has an AB from Barat College and an MA from Loyola University.
PAUL F. UHLIR is director of international scientific and technical information programs at the U.S. National Academy of Sciences/National Research Council (National Academies) in Washington, D.C., where he directs science and technology policy studies for the federal government. His current area of emphasis is issues at the interface of science, technology, and law, with primary focus on scientific data and information policy, and on the relationship of intellectual property law to R&D policy. Mr. Uhlir is also director of the U.S. National Committee for CODATA. From 1991 to 1998, he was associate executive director of the Commission on Physical Sciences, Mathematics, and Applications, and from 1985 to 1991 he was senior program officer at the Space Studies Board, where he worked on solar system exploration and Earth remote sensing studies for NASA. Before joining the National Academies, he was a foreign affairs officer at the National Oceanic and Atmospheric Administration in the Department of Commerce, where he worked on meteorological and land remote sensing law and policy issues. He is the author or editor of more than 50 books, reports, and articles. Mr. Uhlir has a BA in history from the University of Oregon, and a JD and an MA in international relations from the University of San Diego.
| 8:00 am | Continental breakfast | ||
| 8:30 | A. Introductory remarks | ||
| Robert Serafin, Study Chair | |||
| 8:45 | Keynote Address | ||
| Q. Todd Dickinson | |||
| Commissioner of Patents and Trademarks (Acting), Department of Commerce | |||
| B. Summary of S&T databases to be discussed at the workshop | |||
| 9:00 | Geographic Data Panel | ||
| Moderator: Harlan Onsrud, Associate Professor, University of Maine | |||
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| 9:45 | Genomic Data Panel | ||
| Moderator: Philip Loftus, Vice President and Director, Glaxo Wellcome | |||
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| 10:30 | Break | ||
| 10:45 | Chemical and Chemical Engineering Data Panel | ||
| Moderator: Roberta Saxon, Patent Agent, Skjerven, Morrill, MacPherson, et al. | |||
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| 11:30 | Meteorological Data Panel | ||
| Moderator: Robert Serafin, Director, National Center for Atmospheric Research | |||
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| Research | |||
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| 12:15 pm | Lunch | ||
| 1:15 | C. Economic factors in production/dissemination/use of S&T databases in the public and private sectors | ||
| Moderator: | Suzanne Scotchmer, Professor, UC Berkeley | ||
| Speaker: | Richard Gilbert, Professor, UC Berkeley | ||
| 2:15 | D. Overview of technologies for protecting and misappropriating digital IPR: the current situation and future prospects | ||
| Moderator: | Mark Stefik, Principal Scientist, Xerox PARC | ||
| Speaker: | Teresa Lunt, Principal Scientist, Xerox PARC (by video) | ||
| 2:45 | Break | ||
| 3:00 | E.1 Summary overview of existing and proposed IPR regimes for databases | ||
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| Moderator: | Harvey Perlman, Professor, College of Law, University of Nebraska | ||
| Speaker: | Marybeth Peters, Register of Copyrights, Library of Congress | ||
| 3:45 | E.2 Summary of federal government information law and data policies | ||
| Speaker: | Justin Hughes, Attorney, Patent and Trademark Office, Department of Commerce | ||
| 4:00 | F. Breakout sessions on the existing legal and technical situation | ||
| 4:15 | Individual breakout sessions | ||
| 1) Government-sector data panel | |||
| Moderator: | Shelton Alexander, Professor, Pennsylvania State University | ||
| Rapporteur: | Suzanne Scotchmer, Professor, UC Berkeley | ||
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| 2) Not-for-profit-sector data panel | |||
| Moderator: | Maureen Kelly, Vice President for Planning, BIOSIS | ||
| Rapporteur: | Jerome Reichman, Professor, Vanderbilt University School of Law | ||
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| 3) Commercial-sector data panel | |||
| Moderator: | Robert Serafin, Director, National Center for Atmospheric Research | ||
| Rapporteur: | Mark Stefik, Principal Scientist, Xerox PARC | ||
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| 5:45 | Adjourn | ||
| 5:45 - 6:45pm | Reception | ||
| 8:00 am | Continental breakfast | |
| 8:30 | G. Summary reports by rapporteurs from previous day's breakouts | |
| 9:20 | H. Instructions by workshop chair and move to breakout rooms | |
| 9:30 | I. Breakout sessions | |
| Session 1: | Congress decides to enact a strong property rights model protecting databases | |
| Moderator: | Paul Uhlir, Study Director, National Research Council | |
| Rapporteur: | Peter Leavitt, Consultant | |
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| Session 2: | Congress decides to enact an unfair competition model protecting databases | |
| Moderator: | Harvey Perlman, Professor, College of Law, University of Nebraska | |
| Rapporteur: | Philip Loftus, Vice President and Director, Glaxo Wellcome | |
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| Session 3: | Promoting access to and use of government S&T data for the public interest--an assessment of legal and policy options | |
| Moderator: | Harlan Onsrud, Associate Professor, University of Maine | |
| Rapporteur: | Shelton Alexander, Professor, Pennsylvania State University | |
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| Session 4: | Promoting access to and use of not-for-profit-sector S&T data for the public interest--an assessment of legal and policy options | |
| Moderator: | Martha Williams, Professor and Director, Information Retrieval Research Lab, University of Illinois at Urbana-Champaign | |
| Rapporteur: | Roberta Saxon, Patent Agent, Skjerven, Morrill, MacPherson et al. | |
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| 10:45 | Break | |
| 11:00 | Breakout session discussions (continued) | |
| 12:45 pm | Lunch | |
| 1:45 | J. Rapporteurs' summary of breakout panel results | |
| 2:45 | Discussion of results with workshop participants | |
| 3:45 | K. Concluding remarks | |
| Robert Serafin, Chair | ||
| 4:00pm | End of public workshop | |
1 Dr. Brunt was unable to attend the workshop due to illness.
2 Dr. Brunt was unable to attend the workshop due to illness.
3 Ms. Ryan was unable to attend this session due to inclement weather.
4 Dr. Brunt was unable to attend the workshop due to illness.
5 Mr. Weiss was unable to attend this session due to inclement weather.
6 Mr. Adler was unable to attend this session due to inclement weather.
DIRECTIVE 96/9/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 11 March 1996 on the legal protection of databases
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;
(2) Whereas such differences in the legal protection of databases offered
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 arrangements throughout the Community; whereas such differences
could well become more pronounced as Member States introduce new legislation
in
this field, which is now taking on an increasingly international dimension;
(3) Whereas existing differences distorting the functioning of the internal
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 Community 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 considerable
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 extraction and/or re-utilization of the contents
of a
database constitute acts which can have serious economic and technical
consequences;
(9) Whereas databases are a vital tool in the development of an information
market
within the Community; whereas this tool will also be of use in many other
fields;
(10) Whereas the exponential growth, in the Community and worldwide, in the
amount of information generated and processed annually in all sectors of commerce
and industry calls for investment in all the Member States in advanced information
processing systems;
(11) 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;
(12) Whereas such an investment in modern information storage and processing
systems will not take place within the Community unless a stable and uniform
legal
protection regime is introduced for the protection of the rights of makers
of
databases;
(13) Whereas this Directive protects collections, sometimes called 'compilations',
of
works, data or other materials which are arranged, stored and accessed by
means
which include electronic, electromagnetic or electro-optical processes or
analogous
processes;
(14) Whereas protection under this Directive should be extended to cover
non-electronic databases;
(15) Whereas the criteria used to determine whether a database should be protected
by copyright should be defined to the fact that the selection or the arrangement
of the
contents of the database is the author's own intellectual creation; whereas
such
protection should cover the structure of the database;
(16) Whereas no criterion other than originality in the sense of the author's
intellectual
creation should be applied to determine the eligibility of the database for
copyright
protection, and in particular no aesthetic or qualitative criteria should
be applied;
(17) Whereas the term 'database' should be understood to include literary,
artistic,
musical or other collections of works or collections of other material such
as texts,
sound, images, numbers, facts, and data; whereas it should cover collections
of
independent works, data or other materials which are systematically or methodically
arranged and can be individually accessed; whereas this means that a recording
or an
audiovisual, cinematographic, literary or musical work as such does not fall
within the
scope of this Directive;
(18) Whereas this Directive is without prejudice to the freedom of authors
to decide
whether, or in what manner, they will allow their works to be included in
a database,
in particular whether or not the authorization given is exclusive; whereas
the
protection of databases by the sui generis right is without prejudice to existing
rights
over their contents, and whereas in particular where an author or the holder
of a
related right permits some of his works or subject matter to be included in
a
database pursuant to a non-exclusive agreement, a third party may make use
of
those works or subject matter subject to the required consent of the author
or of the
holder of the related right without the sui generis right of the maker of
the database
being invoked to prevent him doing so, on condition that those works or subject
matter are neither extracted from the database nor re-utilized on the basis
thereof;
(19) Whereas, as a rule, the compilation of several recordings of musical
performances on a CD does not come within the scope of this Directive, both
because, as a compilation, it does not meet the conditions for copyright protection
and because it does not represent a substantial enough investment to be eligible
under the sui generis right;
(20) Whereas protection under this Directive may also apply to the materials
necessary for the operation or consultation of certain databases such as thesaurus
and indexation systems;
(21) Whereas the protection provided for in this Directive relates to databases
in
which works, data or other materials have been arranged systematically or
methodically; whereas it is not necessary for those materials to have been
physically
stored in an organized manner;
(22) Whereas electronic databases within the meaning of this Directive may
also
include devices such as CD-ROM and CD-i;
(23) Whereas the term 'database' should not be taken to extend to computer
programs used in the making or operation of a database, which are protected
by
Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer
programs (4);
(24) Whereas the rental and lending of databases in the field of copyright
and related
rights are governed exclusively by Council Directive 92/100/EEC of 19 November
1992 on rental right and lending right and on certain rights related to copyright
in the
field of intellectual property (5);
(25) Whereas the term of copyright is already governed by Council Directive
93/98/EEC of 29 October 1993 harmonizing the term of protection of copyright
and
certain related rights (6);
(26) Whereas works protected by copyright and subject matter protected by
related
rights, which are incorporated into a database, remain nevertheless protected
by the
respective exclusive rights and may not be incorporated into, or extracted
from, the
database without the permission of the rightholder or his successors in title;
(27) Whereas copyright in such works and related rights in subject matter
thus
incorporated into a database are in no way affected by the existence of a
separate
right in the selection or arrangement of these works and subject matter in
a database;
(28) Whereas the moral rights of the natural person who created the database
belong
to the author and should be exercised according to the legislation of the
Member
States and the provisions of the Berne Convention for the Protection of Literary
and
Artistic Works; whereas such moral rights remain outside the scope of this
Directive;
(29) Whereas the arrangements applicable to databases created by employees
are
left to the discretion of the Member States; whereas, therefore nothing in
this
Directive prevents Member States from stipulating in their legislation that
where a
database is created by an employee in the execution of his duties or following
the
instructions given by his employer, the employer exclusively shall be entitled
to
exercise all economic rights in the database so created, unless otherwise
provided by
contract;
(30) Whereas the author's exclusive rights should include the right to determine
the
way in which his work is exploited and by whom, and in particular to control
the
distribution of his work to unauthorized persons;
(31) Whereas the copyright protection of databases includes making databases
available by means other than the distribution of copies;
(32) Whereas Member States are required to ensure that their national provisions
are at least materially equivalent in the case of such acts subject to restrictions
as are
provided for by this Directive;
(33) Whereas the question of exhaustion of the right of distribution does
not arise in
the case of on-line databases, which come within the field of provision of
services;
whereas this also applies with regard to a material copy of such a database
made by
the user of such a service with the consent of the rightholder; whereas, unlike
CD-ROM or CD-i, where the intellectual property is incorporated in a material
medium, namely an item of goods, every on-line service is in fact an act which
will
have to be subject to authorization where the copyright so provides;
(34) Whereas, nevertheless, once the rightholder has chosen to make available
a
copy of the database to a user, whether by an on-line service or by other
means of
distribution, that lawful user must be able to access and use the database
for the
purposes and in the way set out in the agreement with the rightholder, even
if such
access and use necessitate performance of otherwise restricted acts;
(35) Whereas a list should be drawn up of exceptions to restricted acts, taking
into
account the fact that copyright as covered by this Directive applies only
to the
selection or arrangements of the contents of a database; whereas Member States
should be given the option of providing for such exceptions in certain cases;
whereas,
however, this option should be exercised in accordance with the Berne Convention
and to the extent that the exceptions relate to the structure of the database;
whereas
a distinction should be drawn between exceptions for private use and exceptions
for
reproduction for private purposes, which concerns provisions under national
legislation of some Member States on levies on blank media or recording equipment;
(36) Whereas the term 'scientific research' within the meaning of this Directive
covers both the natural sciences and the human sciences;
(37) Whereas Article 10 (1) of the Berne Convention is not affected by this
Directive;
(38) Whereas the increasing use of digital recording technology exposes the
database maker to the risk that the contents of his database may be copied
and
rearranged electronically, without his authorization, to produce a database
of
identical content which, however, does not infringe any copyright in the arrangement
of his database;
(39) Whereas, in addition to aiming to protect the copyright in the original
selection
or arrangement of the contents of a database, this Directive seeks to safeguard
the
position of makers of databases against misappropriation of the results of
the
financial and professional investment made in obtaining and collection [sic]
the contents
by protecting the whole or substantial parts of a database against certain
acts by a user
or competitor;
(40) Whereas the object of this sui generis right is to ensure protection
of any
investment in obtaining, verifying or presenting the contents of a database
for the
limited duration of the right; whereas such investment may consist in the
deployment
of financial resources and/or the expending of time, effort and energy;
(41) Whereas the objective of the sui generis right is to give the maker of
a database
the option of preventing the unauthorized extraction and/or re-utilization
of all or a
substantial part of the contents of that database; whereas the maker of a
database is
the person who takes the initiative and the risk of investing; whereas this
excludes
subcontractors in particular from the definition of maker;
(42) Whereas the special right to prevent unauthorized extraction and/or re-utilization
relates to acts by the user which go beyond his legitimate rights and thereby
harm the
investment; whereas the right to prohibit extraction and/or re-utilization
of all or a
substantial part of the contents relates not only to the manufacture of a
parasitical
competing product but also to any user who, through his acts, causes significant
detriment, evaluated qualitatively or quantitatively, to the investment;
(43) Whereas, in the case of on-line transmission, the right to prohibit re-utilization
is
not exhausted either as regards the database or as regards a material copy
of the
database or of part thereof made by the addressee of the transmission with
the
consent of the rightholder;
(44) Whereas, when on-screen display of the contents of a database necessitates
the
permanent or temporary transfer of all or a substantial part of such contents
to
another medium, that act should be subject to authorization by the rightholder;
(45) Whereas the right to prevent unauthorized extraction and/or re-utilization
does
not in any way constitute an extension of copyright protection to mere facts
or data;
(46) Whereas the existence of a right to prevent the unauthorized extraction
and/or
re-utilization of the whole or a substantial part of works, data or materials
from a
database should not give rise to the creation of a new right in the works,
data or
materials themselves;
(47) Whereas, in the interests of competition between suppliers of information
products and services, protection by the sui generis right must not be afforded
in
such a way as to facilitate abuses of a dominant position, in particular as
regards the
creation and distribution of new products and services which have an intellectual,
documentary, technical, economic or commercial added value; whereas, therefore,
the provisions of this Directive are without prejudice to the application
of Community
or national competition rules;
(48) Whereas the objective of this Directive, which is to afford an appropriate
and
uniform level of protection of databases as a means to secure the remuneration
of the
maker of the database, is different from the aim of Directive 95/46/EC of
the
European Parliament and of the Council of 24 October 1995 on the protection
of
individuals with regard to the processing of personal data and on the free
movement
of such data (7), which is to guarantee free circulation of personal data
on the basis
of harmonized rules designed to protect fundamental rights, notably the right
to
privacy which is recognized in Article 8 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms; whereas the provisions
of
this Directive are without prejudice to data protection legislation;
(49) Whereas, notwithstanding the right to prevent extraction and/or re-utilization
of
all or a substantial part of a database, it should be laid down that the maker
of a
database or rightholder may not prevent a lawful user of the database from
extracting
and re-utilizing insubstantial parts; whereas, however, that user may not
unreasonably
prejudice either the legitimate interests of the holder of the sui generis
right or the
holder of copyright or a related right in respect of the works or subject
matter
contained in the database;
(50) Whereas the Member States should be given the option of providing for
exceptions to the right to prevent the unauthorized extraction and/or re-utilization
of a
substantial part of the contents of a database in the case of extraction for
private
purposes, for the purposes of illustration for teaching or scientific research,
or where
extraction and/or re-utilization are/is carried out in the interests of public
security or
for the purposes of an administrative or judicial procedure; whereas such
operations
must not prejudice the exclusive rights of the maker to exploit the database
and their
purpose must not be commercial;
(51) Whereas the Member States, where they avail themselves of the option
to
permit a lawful user of a database to extract a substantial part of the contents
for the
purposes of illustration for teaching or scientific research, may limit that
permission to
certain categories of teaching or scientific research institution;
(52) Whereas those Member States which have specific rules providing for a
right
comparable to the sui generis right provided for in this Directive should
be permitted
to retain, as far as the new right is concerned, the exceptions traditionally
specified
by such rules;
(53) Whereas the burden of proof regarding the date of completion of the making
of
a database lies with the maker of the database;
(54) Whereas the burden of proof that the criteria exist for concluding that
a
substantial modification of the contents of a database is to be regarded as
a
substantial new investment lies with the maker of the database resulting from
such
investment;
(55) Whereas a substantial new investment involving a new term of protection
may
include a substantial verification of the contents of the database;
(56) Whereas the right to prevent unauthorized extraction and/or re-utilization
in
respect of a database should apply to databases whose makers are nationals
or
habitual residents of third countries or to those produced by legal persons
not
established in a Member State, within the meaning of the Treaty, only if such
third
countries offer comparable protection to databases produced by nationals of
a
Member State or persons who have their habitual residence in the territory
of the
Community;
(57) Whereas, in addition to remedies provided under the legislation of the
Member
States for infringements of copyright or other rights, Member States should
provide
for appropriate remedies against unauthorized extraction and/or re-utilization
of the
contents of a database;
(58) Whereas, in addition to the protection given under this Directive to
the structure
of the database by copyright, and to its contents against unauthorized extraction
and/or re-utilization under the sui generis right, other legal provisions
in the Member
States relevant to the supply of database goods and services continue to apply;
(59) Whereas this Directive is without prejudice to the application to databases
composed of audiovisual works of any rules recognized by a Member State's
legislation concerning the broadcasting of audiovisual programmes;
(60) Whereas some Member States currently protect under copyright arrangements
databases which do not meet the criteria for eligibility for copyright protection
laid
down in this Directive; whereas, even if the databases concerned are eligible
for
protection under the right laid down in this Directive to prevent unauthorized
extraction and/or re-utilization of their contents, the term of protection
under that
right is considerably shorter than that which they enjoy under the national
arrangements currently in force; whereas harmonization of the criteria for
determining
whether a database is to be protected by copyright may not have the effect
of
reducing the term of protection currently enjoyed by the rightholders concerned;
whereas a derogation should be laid down to that effect; whereas the effects
of such
derogation must be confined to the territories of the Member States concerned,
HAVE ADOPTED THIS DIRECTIVE:
CHAPTER I
SCOPE
Article 1
Scope
1. This Directive concerns the legal protection of databases in any form.
2. 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.
3. Protection under this Directive shall not apply to computer programs used
in the
making or operation of databases accessible by electronic means.
Article 2
Limitations on the scope
This Directive shall apply without prejudice to Community provisions relating
to:
(a) the legal protection of computer programs;
(b) rental right, lending right and certain rights related to copyright in
the field of
intellectual property;
(c) the term of protection of copyright and certain related rights.
CHAPTER II
COPYRIGHT
Article 3
Object of protection
1. In accordance with this Directive, databases which, by reason of the selection
or
arrangement of their contents, constitute the author's own intellectual creation
shall be
protected as such by copyright. No other criteria shall be applied to determine
their
eligibility for that protection.
2. The copyright protection of databases provided for by this Directive shall
not
extend to their contents and shall be without prejudice to any rights subsisting
in
those contents themselves.
Article 4
Database authorship
1. The author of a database shall be the natural person or group of natural
persons
who created the base or, where the legislation of the Member States so permits,
the
legal person designated as the rightholder by that legislation.
2. Where collective works are recognized by the legislation of a Member State,
the
economic rights shall be owned by the person holding the copyright.
3. In respect of a database created by a group of natural persons jointly,
the
exclusive rights shall be owned jointly.
Article 5
Restricted acts
In respect of the expression of the database which is protectable by copyright,
the
author of a database shall have the exclusive right to carry out or to authorize:
(a) temporary or permanent reproduction by any means and in any form, in whole
or
in part;
(b) translation, adaptation, arrangement and any other alteration;
(c) any form of distribution to the public of the database or of copies thereof.
The
first sale in the Community of a copy of the database by the rightholder or
with his
consent shall exhaust the right to control resale of that copy within the
Community;
(d) any communication, display or performance to the public;
(e) any reproduction, distribution, communication, display or performance
to the
public of the results of the acts referred to in (b).
Article 6
Exceptions to restricted
acts
1. The performance by the lawful user of a database or of a copy thereof of
any of
the acts listed in Article 5 which is necessary for the purposes of access
to the
contents of the databases and normal use of the contents by the lawful user
shall not
require the authorization of the author of the database. Where the lawful
user is
authorized to use only part of the database, this provision shall apply only
to that
part.
2. Member States shall have the option of providing for limitations on the
rights set
out in Article 5 in the following cases:
(a) in the case of reproduction for private purposes of a non-electronic database;
(b) where there is use for the sole purpose of illustration for teaching or
scientific
research, as long as the source is indicated and to the extent justified by
the
non-commercial purpose to be achieved;
(c) where there is use for the purposes of public security of [sic]
for the purposes of an
administrative or judicial procedure;
(d) where other exceptions to copyright which are traditionally authorized
under
national law are involved, without prejudice to points (a), (b) and (c).
3. In accordance with the Berne Convention for the protection of Literary
and
Artistic Works, this Article may not be interpreted in such a way as to allow
its
application to be used in a manner which unreasonably prejudices the rightholder's
legitimate interests or conflicts with normal exploitation of the database.
CHAPTER III
SUI GENERIS RIGHT
Article 7
Object of protection
1. 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 to prevent extraction
and/or
re-utilization of the whole or of a substantial part, evaluated qualitatively
and/or
quantitatively, of the contents of that database.
2. For the purposes of this Chapter:
(a) 'extraction' shall mean the permanent or temporary transfer of all or
a substantial
part of the contents of a database to another medium by any means or in any
form;
(b) 're-utilization' shall mean any form of making available to the public
all or a
substantial part of the contents of a database by the distribution of copies,
by renting,
by on-line or other forms of transmission. The first sale of a copy of a database
within the Community by the rightholder or with his consent shall exhaust
the right to
control resale of that copy within the Community;
Public lending is not an act of extraction or re-utilization.
3. The right referred to in paragraph 1 may be transferred, assigned or granted
under
contractual licence.
4. The right provided for in paragraph 1 shall apply irrespective of the eligibility
of
that database for protection by copyright or by other rights. Moreover, it
shall apply
irrespective of eligibility of the contents of that database for protection
by copyright
or by other rights. Protection of databases under the right provided for in
paragraph
1 shall be without prejudice to rights existing in respect of their contents.
5. The repeated and systematic extraction and/or re-utilization of insubstantial
parts
of the contents of the database implying acts which conflict with a normal
exploitation
of that database or which unreasonably prejudice the legitimate interests
of the maker
of the database shall not be permitted.
Article 8
Rights and obligations
of lawful users
1. The maker of a database which is made available to the public in whatever
manner
may not prevent a lawful user of the database from extracting and/or re-utilizing
insubstantial parts of its contents, evaluated qualitatively and/or quantitatively,
for any
purposes whatsoever. Where the lawful user is authorized to extract and/or
re-utilize
only part of the database, this paragraph shall apply only to that part.
2. A lawful user of a database which is made available to the public in whatever
manner may not perform acts which conflict with normal exploitation of the
database
or unreasonably prejudice the legitimate interests of the maker of the database.
3. A lawful user of a database which is made available to the public in any
manner
may not cause prejudice to the holder of a copyright or related right in respect
of the
works or subject matter contained in the database.
Article 9
Exceptions to the sui
generis right
Member States may stipulate that lawful users of a database which is made
available
to the public in whatever manner may, without the authorization of its maker,
extract
or re-utilize a substantial part of its contents:
(a) in the case of extraction for private purposes of the contents of a non-electronic
database;
(b) in the case of extraction for the purposes of illustration for teaching
or scientific
research, as long as the source is indicated and to the extent justified by
the
non-commercial purpose to be achieved;
(c) in the case of extraction and/or re-utilization for the purposes of public
security or
an administrative or judicial procedure.
Article 10
Term of protection
1. The right provided for in Article 7 shall run from the date of completion
of the
making of the database. It shall expire fifteen years from the first of January
of the
year following the date of completion.
2. In the case of a database which is made available to the public in whatever
manner
before expiry of the period provided for in paragraph 1, the term of protection
by
that right shall expire fifteen years from the first of January of the year
following the
date when the database was first made available to the public.
3. Any substantial change, evaluated qualitatively or quantitatively, to the
contents of
a database, including any substantial change resulting from the accumulation
of
successive additions, deletions or alterations, which would result in the
database
being considered to be a substantial new investment, evaluated qualitatively
or
quantitatively, shall qualify the database resulting from that investment
for its own
term of protection.
Article 11
Beneficiaries of protection
under the sui generis right
1. The right provided for in Article 7 shall apply to database [sic]
whose makers or
rightholders are nationals of a Member State or who have their habitual residence
in
the territory of the Community.
2. Paragraph 1 shall also apply to companies and firms formed in accordance
with
the law of a Member State and having their registered office, central administration
or principal place of business within the Community; however, where such a
company or firm has only its registered office in the territory of the Community,
its
operations must be genuinely linked on an ongoing basis with the economy of
a
Member State.
3. Agreements extending the right provided for in Article 7 to databases made
in
third countries and falling outside the provisions of paragraphs 1 and 2 shall
be
concluded by the Council acting on a proposal from the Commission. The term
of
any protection extended to databases by virtue of that procedure shall not
exceed
that available pursuant to Article 10.
CHAPTER IV
COMMON PROVISIONS
Article 12
Remedies
Member States shall provide appropriate remedies in respect of infringements
of the
rights provided for in this Directive.
Article 13
Continued application
of other legal provisions
This Directive shall be without prejudice to provisions concerning in particular
copyright, rights related to copyright or any other rights or obligations
subsisting in
the data, works or other materials incorporated into a database, patent rights,
trade
marks, design rights, the protection of national treasures, laws on restrictive
practices
and unfair competition, trade secrets, security, confidentiality, data protection
and
privacy, access to public documents, and the law of contract.
Article 14
Application over time
1. Protection pursuant to this Directive as regards copyright shall also be
available in
respect of databases created prior to the date referred to Article 16 (1)
which on
that date fulfil the requirements laid down in this Directive as regards copyright
protection of databases.
2. Notwithstanding paragraph 1, where a database protected under copyright
arrangements in a Member State on the date of publication of this Directive
does not
fulfil the eligibility criteria for copyright protection laid down in Article
3 (1), this
Directive shall not result in any curtailing in that Member State of the remaining
term
of protection afforded under those arrangements.
3. Protection pursuant to the provisions of this Directive as regards the
right provided
for in Article 7 shall also be available in respect of databases the making
of which
was completed not more than fifteen years prior to the date referred to in
Article 16
(1) and which on that date fulfil the requirements laid down in Article 7.
4. The protection provided for in paragraphs 1 and 3 shall be without prejudice
to
any acts concluded and rights acquired before the date referred to in those
paragraphs.
5. In the case of a database the making of which was completed not more than
fifteen years prior to the date referred to in Article 16 (1), the term of
protection by
the right provided for in Article 7 shall expire fifteen years from the first
of January
following that date.
Article 15
Binding nature of certain
provisions
Any contractual provision contrary to Articles 6 (1) and 8 shall be null and
void.
Article 16
Final provisions
1. Member States shall bring into force the laws, regulations and administrative
provisions necessary to comply with this Directive before 1 January 1998.
When Member States adopt these provisions, they shall contain a reference
to this
Directive or shall be accompanied by such reference on the occasion of their
official
publication. The methods of making such reference shall be laid down by Member
States.
2. Member States shall communicate to the Commission the text of the provisions
of
domestic law which they adopt in the field governed by this Directive.
3. Not later than at the end of the third year after the date referred to
in paragraph 1,
and every three years thereafter, the Commission shall submit to the European
Parliament, the Council and the Economic and Social Committee a report on
the
application of this Directive, in which, inter alia, on the basis of specific
information
supplied by the Member States, it shall examine in particular the application
of the sui
generis right, including Articles 8 and 9, and shall verify especially whether
the
application of this right has led to abuse of a dominant position or other
interference
with free competition which would justify appropriate measures being taken,
including the establishment of non-voluntary licensing arrangements. Where
necessary, it shall submit proposals for adjustment of this Directive in line
with
developments in the area of databases.
Article 17
This Directive is addressed to the Member States.
Done at Strasbourg, 11
March 1996.
For the European Parliament
The President
K. H�NSCH
For the Council
The President
L. DINI
(1) OJ No C 156, 23. 6.
1992, p. 4 and
OJ No C 308, 15. 11. 1993, p. 1.
(2) OJ No C 19, 25. 1. 1993, p. 3.
(3) Opinion of the European Parliament of 23 June 1993 (OJ No C 194, 19. 7.
1993, p. 144), Common Position of the Council of 10 July 1995 (OJ No C 288,
30.
10. 1995, p. 14), Decision of the European Parliament of 14 December 1995
(OJ
No C 17, 22 1. 1996) and Council Decision of 26 February 1996.
(4) OJ No L 122, 17. 5. 1991, p. 42. Directive as last amended by Directive
93/98/EEC (OJ No L 290, 24. 11. 1993, p. 9.)
(5) OJ No L 346, 27. 11. 1992, p. 61.
(6) OJ No L 290, 24. 11. 1993, p. 9.
(7) OJ No L 281, 23. 11. 1995, p. 31.
The material presented in this appendix has been reprinted from electronic files available on the Internet and is intended for use as a general reference, and not for legal research or other work requiring authenticated primary sources.
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