By Sander Gellaerts (Doctoral Candidate at Tilburg Institute for Law, Technology, and Society)
Recently, the European Parliament published a press release indicating that the Music copyright was to be extended to 95 years. ‘Increasing the term of copyright protection would ensure that performers and producers continue to receive royalties for 95 years from the first publication or performance of their song, according to a Commission proposal backed by the committee.’ Nice as a mission; low on explanatory force.
This extension was debated heavily by academics. From a scientific point of view there where many objections to the extension. More than one research institute concluded that there was no proper motive to extend the term of protection. At least not from any science they knew.
We see similar ‘wishes to protect’ for the Database directive. This year it will be ten years ago that directive 96/9/EC on the legal protection of databases was implemented in the Netherlands (8 July 1999). The directive aims at harmonizing database law in the EU. It should provide EU-countries a (harmonisted) database law and had two major goals in 1996 as stated in preambule: first there was a 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 countries (11). Secondly that 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 in favour of database-producers (12).
In december 2005 the Commission reported their internal market and services working paper,
First evaluation of Directive 96/9/EC on the legal protection of databases. The evalution holds the conclusion that the ‘sui generis’ right is difficult to understand. ‘Sui generis’ protection comes close to protecting data as property and the economic impact of the ‘sui generis’ right is unproven.
The fact that the Directive failed to stimulate the growth of databases in Europe and that the new instrument had no proven impact on the production of databases seem to me forceful arguments to reconsider this directive. Significantly, the number of database “entries” dropped just as most of the EU-15 Member States had implemented the Directive into national laws in 2001. In 2001, there were 4085 EU-based ‘entries’ whilst in 2004 there were only 3095. Nevertheless, representatives of the European publishing industry keep arguing that ‘sui generis’ protection is crucial to the continued success of their activities. Their survey at that time showed that they felt ‘protected’ or ‘well protected’. If database law really only protects investments, why is it considerd an intellectual property (IP) right? It remains an empirical question whether we – as a society – are better off with more or with less protection.
In its Report, the Commission presents the following policy options: (1) Repeal the entire Directive, (2) withdraw the “sui generis” right, (3) amend the “sui generis” provisions, or (4) maintain the status quo.
As with the extenstion of (the term of) protection in (music)copyright issues, we should seriously consider whether we are better off with more or with less protection. In my view this consideration is true for all IP rights, but certainly for present day Database Law.
Tags: 96/9/EC, copyright, database, protection, Sander Gellaerts
This is very hot info. I think I’ll share it on Facebook.
FANTASTIC!
great article, it really made me want to post.