- Legal framework for databases under the Copyright Act
The legal framework for databases as we know it within our legal order, i.e. Act No. 185/2015 Coll., as amended (hereinafter the "Copyright Act"), is the result of the implementation of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases (hereinafter the "Directive"). Under Section § 130 of the Copyright Act, a database is a collection of independent works, data or other independent materials arranged in a systematic or methodical way and individually accessible by electronic or other means, regardless of the form of its expression. This is a universal definition covering
- the so-called creative (authorial) database, to which copyright attaches and whose holder is only the author – a natural person
- the so-called non-creative (non-authorial) database, to which a special right in the database attaches, i.e. a sui generis right, the holder of which may be, in addition to the author as a natural person, also a legal person.
- Authorial database
The legal protection of an authorial database is apparent from Section § 131 of the Copyright Act: where the manner of the selection or arrangement of the content of the database is the result of the author's own creative intellectual activity, the second part of the Copyright Act, i.e. the provisions of Section § 3 et seq. on Copyright, applies to that database. In the case of an authorial database, the Copyright Act affords protection to the structure of the database, not to its content. The said Section § 131 of the Copyright Act also lists, by way of example, a database as a compilation, a newspaper, a magazine, an encyclopaedia, an anthology, a programme block or an exhibition.
The author's own creative intellectual activity is thus the sole criterion for the creation of copyright protection for databases. The field of creativity, the difficulty of the work, the investment in creating the database, or other factors are not relevant. In relation to the phrase "the author's own creative intellectual activity", the Court of Justice of the EU referred directly to the criterion of originality; for example, in judgment C-604/10 Football Dataco it stated directly that the criterion of originality is satisfied where, through the selection or arrangement of the data contained in the database, its author expresses his creative ability in an original manner by making free and creative choices and thereby stamps it with his unique character, or personal style.[1]
- Non-authorial database and the sui generis right of the maker of a database
A specific issue in relation to databases is the sui generis right of the maker of a database. The sui generis right of the maker of a database is also known as the special right of the maker of a database and exists independently of copyright, which may protect individual components of a database where copyright works are systematically arranged in some way within the content of the database. The content of a database may also comprise other materials that do not meet the requirements of a copyright work within the meaning of Section § 130 of the Copyright Act.[2] Protection of a database on the basis of the sui generis right therefore applies to the content of the database if it represents a qualitatively or quantitatively substantial investment in the obtaining, verification or presentation of its content. Only then does the maker of the database have the exclusive right to use the database and to authorise the extraction or re-utilisation of the whole of the content of the database or of a qualitatively or quantitatively substantial part thereof, within the meaning of Section § 135(1) of the Copyright Act and the following provisions. The maker of a database is a natural or legal person who initiated and secured the making of the database, i.e. who expended considerable effort and financial resources on producing such a database. In this case, legal protection is limited in time to a period of 15 years from the date on which the database was made or from the date on which access to the database was made available to the public, whichever of these occurred later.
3.1. Exceptions and limitations to the legal protection of a non-authorial database
The Copyright Act naturally lays down exceptions and limitations to the special right in a database, within the provisions of Section § 138 of the Copyright Act, which are:
- a database that has been made available to the public; however, the user must not use it contrary to the purpose the database is intended to serve, nor unreasonably prejudice the legally protected interests of the maker of the database, while at the same time no harm may be caused to the rights of the authors of the individual components of the database,
- where the user of the database, without the consent of the maker of the database, extracts or re-utilises a qualitatively or quantitatively insubstantial part of its content, for any purpose whatsoever,
- a database that has been made available to the public, where a user, without the consent of the maker of the database, extracts or re-utilises a substantial part of the content of the database, in the case of:
- extraction of the content of a database made in non-electronic form
- extraction for the purpose of illustration in teaching or research carried out without gaining any direct or indirect commercial advantage, provided that the maker and the source are indicated
- a database to which access has been made available to the public is not infringed by a user of the database who, without the consent of the maker of the database, extracts or re-utilises a substantial part of the content of the database, where this is extraction or re-utilisation to the extent necessary for the purpose of ensuring public security, or administrative, criminal or judicial proceedings and the proceedings of the National Council of the Slovak Republic and municipal bodies.
Within Section § 135(5), the Copyright Act expressly prohibits the repeated and systematic extraction or re-utilisation of insubstantial parts of the content of a database that is contrary to the normal use of the database and that unreasonably prejudices the legally protected interests of the maker of the database.
3.2. A qualitatively or quantitatively substantial investment as a defining feature of a non-authorial database in the case law of the Court of Justice of the EU and the Supreme Court of the Slovak Republic
On the basis of the above definition of a non-authorial database, it is clear that it is precisely a qualitatively or quantitatively substantial investment that constitutes its basic defining feature and gives rise to sui generis protection.
In its judgment of 9 November 2004 in Case C-203/02 The British Horseracing Board Ltd and Others v William Hill Organisation Ltd, the Court of Justice of the EU held that the concept of the investment in the obtaining of the content of a database (within the meaning of Article 7(1) of the Directive) must be understood as referring to the resources used to seek out existing materials and to collect them in that database. The concept of investment cannot be understood to mean the resources used to create the basic materials making up the content of the database. As regards the investment in the verification of the content of a database, this must be understood as referring to the resources intended to monitor the accuracy of the materials sought out both during the compilation of the database and during the period of its operation, with a view to ensuring the reliability of the information contained in the database. That concept cannot be understood to mean the resources expended on verification during the creation of materials subsequently collected in a database. The Court of Justice of the EU ruled similarly in its judgment of 9 November 2004 in Case C-46/02 Fixtures Marketing Ltd. v Veikkaus Ab.
In its judgment No. 3Sžf/78/2007 of 5 June 2008, the Supreme Court of the Slovak Republic held that a collection of photographic works (photographs) whose author was the claimant, and whose processing – the retouching and scanning of 2,000 photographs – the claimant commissioned for archival purposes on a DVD medium, may be regarded as a collection of independent works, that is, a database. Since it is a collection of works stored on a DVD medium which are arranged and whose individual photographs are accessible by electronic or other means, the Court regards the service (work) so performed as the creation of a database of the claimant's photographs.
- Protection of rights
As stated above, a database may be protected either by copyright in the database or by the special right in the database, or possibly by both regimes at the same time. For a non-authorial database to be afforded sui generis protection, several criteria must be met, which in practice is associated with considerable difficulties. Satisfying these conditions may in many cases be more demanding than satisfying the conditions for copyright protection in the case of authorial databases protected as a copyright work[3] under the Copyright Act. For this reason, makers of non-authorial databases rely in particular on the relevant protection under the rules against unfair competition, where they may claim redress in the form of compensation for damage or adequate satisfaction, without having to prove concepts such as a qualitatively or quantitatively substantial part of the content of the database. A safe harbour for business, and also non-business, entities that participate in economic competition is the general clause of Section § 44(1) of the Commercial Code, under which unfair competition is conduct in economic competition that is contrary to the good morals of competition and is capable of causing harm to other competitors or to consumers. Unfair competition is prohibited. Where the conditions for granting sui generis protection are met, the maker of the database enjoys protection under the Copyright Act, within the meaning of Section § 58 et seq. of the Copyright Act, in the same way as the author of a database.
[1] Adamová, Z., Hazucha, B., Copyright Act. Commentary. 1st edition. Bratislava: C.H. Beck, 2018, p. 871
[2] Surmová, Soňa. AUTHORIAL AND NON-AUTHORIAL DATABASES: HOW DID THE IMPLEMENTATION OF DIRECTIVE 9/96/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL ON THE LEGAL PROTECTION OF DATABASES TURN OUT IN THE SLOVAK LEGAL ORDER?: The place, role and significance of national law in ensuring the fulfilment of obligations arising from international and European law, Collection of scholarly papers of doctoral students and young researchers. Pavol Jozef Šafárik University, Košice, 2018, p. 446. Online: https://www.upjs.sk/public/media/17624/zbornik_58.pdf
[3] Surmová, Soňa. AUTHORIAL AND NON-AUTHORIAL DATABASES: HOW DID THE IMPLEMENTATION OF DIRECTIVE 9/96/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL ON THE LEGAL PROTECTION OF DATABASES TURN OUT IN THE SLOVAK LEGAL ORDER?: The place, role and significance of national law in ensuring the fulfilment of obligations arising from international and European law, Collection of scholarly papers of doctoral students and young researchers. Pavol Jozef Šafárik University, Košice, 2018, p. 453. Online: https://www.upjs.sk/public/media/17624/zbornik_58.pdf