In the preparatory note of the proposal of the new PSI Directive it is reported that the recast clarifies the relation between Directive 96/9/EC on legal protection of databases and the PSI Directive itself.

Let’see what is the contested subject-matter.

 

In the context of the legal protection of databases, Directive 96/9/EC introduced a particular protection, the sui generis right.
The sui generis right is attributed to the creator of a database, identified as the person who has made significant investments of money, time and work, regardless of the existence of any requirement of creativity or originality of the work. In this way, the database is protected purely in view of the effort and economic risk involved in collecting the information in it.

This right was originally aimed to protect the investment and to discourage any possible extraction and reuse of the contents of the database. This is obviously not in line with the principles of the PSI Directive.

The two directives seem to go in opposite ways: the PSI Directive promotes the idea to make as much public information available for re-use as possible, whilst the Database Directive is trying to limit and control the re-use of information.

In other words, we are looking at some sort of antinomy, where we have two ideas that are in themselves reasonable but contradictory.

 

Why a clarification is important

At first glance it may seem a sophisticated subject and of little use to most people, but it is not so, for several reasons.

Firstly, public sector bodies are tempted to leverage this right in order to deny the re-use of data. Here an example.

Secondly, emerging technologies such as IoT, AI and Big Data are creating a number of new scenarios potentially covered by sui generis protection. Let’s think to situations in which sensors and other devices gather data on a distributed infrastructure (i.e. mobility tracking): they may involve significant investments and therefore the sui generis right could be applied. Other big data use-case may require complete data sets from a multitude of databases, this may infringe the sui generis right.

Thirdly, the forensic practice does not suggest legal certainty as regards the interplay between the two directives.

 

The recast of the PSI Directive: a contribute to the clarification

Original 2003/98/EC PSI Directive contained a reference to the database protection in recital 24.

This Directive is without prejudice to Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society ( 1 ) and Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases ( 2 ). It spells out the conditions within which public sector bodies can exercise their intellectual property rights in the internal information market when allowing re-use of documents.

It simply stated that the PSI Directive cannot be used against the Database Directive, but it did not help to solve the question since the contrary remained unclear: does the sui generis right affect the obligations in the PSI Directive?

The new PSI Directive proposal, which once adopted will be named “Open Data and Public Sector Information Directive”, seems to have put an end to the dispute.

New point 5 of article 1 removes any doubt about the possibility for the Public sector bodies to invoke the sui generis right:

5. The right for the maker of a database provided for in Article 7(1) of Directive 96/9/EC shall not be exercised by public sector bodies in order to prevent or restrict the re-use of documents pursuant to this Directive.

The statement is confirmed by recital 53, which substitutes recital 24 of Directive 2003/98/EC:

This Directive is without prejudice to Directive 2001/29/EC of the European Parliament and of the Council and Directive 96/9/EC of the European Parliament and of the Council. It spells out the conditions within which public sector bodies can exercise their intellectual property rights in the internal information market when allowing re-use of documents. In particular, where public sector bodies are holders of the right provided for in Article 7(1) of Directive 96/9/EC, they should not exercise it in order to prevent or restrict the re-use of data contained in databases.

However, looking at the compromise text agreed with the European Council on 7 November 2018, the concept seems a bit softened.

Point 5 of article 1 is slightly changed:

The right for the maker of a database provided for in Article 7(1) of Directive 96/9/EC shall not be exercised by public sector bodies in order to prevent or restrict the re-use of documents or to restrict re-use beyond the limits set by pursuant to this Directive.  

Whereas in the wording of recital 53 the explicit reference to the Database directive is deleted.

This Directive is without prejudice to Directive 2001/29/EC of the European Parliament and of the Council and Directive 96/9/EC of the European Parliament and of the Council. It spells out the conditions within which public sector bodies can exercise their intellectual property rights in the internal information market when allowing re-use of documents. In particular,wWhere public sector bodies are holders of the right provided for in Article 7(1) of Directive 96/9/EC, they should not exercise it that right in order to prevent re-use or to restrict the re-use of data contained in databases existing documents beyond the limits set regulated by this Directive.

 

The ongoing evaluation of the Database Directive: a possible alignment

Last year the European Commission published a study in support of the evaluation of the Database Directive. Curiously, it was released on 25 April, the same date of the first publication recast of the PSI Directive and maybe it’s not a coincidence.

In short, the study reported that:

There is strong evidence that there is no coherence, a clash or no clarity or uncertainty as regards the relationship between the Database Directive or at least the sui generis right and the PSI directives and open access policies. The sui generis right is seen by many as a barrier to innovation and knowledge exchange and thus to economic growth as research and public data cannot be reused either at all (if refusal to license), or less fast or at a greater cost. It makes the EU less competitive than other economies where data research and public is more open.

Then the authors of the study suggest that the removal of the protection of the sui generis right for public bodies including research institutions would be a possibility, but it should be ensured that those which are self-funded and act somewhat as commercial entities are not excluded from the benefit of the sui generis right, as their existence, and with that valuable databases, may be threatened.

Conclusion

The interpretation issues concerning the sui generis right in the context of PSI Directive, will most likely be a thing of the past. The new “Open Data and Public Sector Information Directive” clearly states that the public sector bodies cannot use the sui generis right to prevent or restrict the re-use of documents although the concept was a bit softened in the compromise text agreed with the European Council on 7 November 2018.

As far as the Database Directive is concerned, a recent study in support of the evaluation of the directive suggests deleting the sui generis right with the exclusion of those public sector bodies that rely on this right for their economic survival.