European database right protection will not be available to UK businesses in respect of new databases after the end of the transition period on 31 December 2020. In this Q&A we look at the consequences for database owners operating in Europe.
What are database rights?
Database rights were introduced in EU Member States in 1998 with the intention of increasing legal protection for databases across Europe. They give owners of relevant databases the right to object to substantial unauthorised extraction or re-utilisation of data.
Are there any limitations?
A significant limitation is that database rights only apply if the development of the database has involved a substantial investment in gathering together and checking content. Any investment there may have been in creating the content itself does not count. The practical consequence of this is that databases that collect together independent, third party content usually qualify for database right: for example a news database or collection of musical works or a directory of third party addresses. By contrast, databases that consist of data created in the database owner’s main business are unlikely to qualify: for example, database right has been denied to horse racing and football fixture lists. Similarly, a list of the BBC’s television programmes prepared by the BBC is unlikely to qualify for database right whereas a list incorporating television programmes from a number of different sources is likely to qualify.
Who can own European database rights post transition?
Up to 31 December 2020 databases made by European Economic Area (EEA) businesses (including the UK) are eligible for protection throughout the EEA. From 1 January 2021, however, new databases made by UK businesses will not be eligible for protection in the remaining EEA member states. Similarly, new databases made by EEA businesses will not be protected in the UK.
What about databases that already exist at the end of transition?
Under the Withdrawal Agreement databases existing on 31 December 2020 will continue to enjoy protection throughout the EEA (including the UK) for the duration of the database right in question. So these database rights will continue to be enforceable both in the UK and in the EEA as before until the end of the term of the relevant database right.
How long is the “term”
The basic term for database right is 15 years. However, substantial additions or modifications are regarded as creating a new database and a new term. In practice, most commercial databases exist on a rolling basis with content being added continuously. If substantial additions or modifications are made in this way, then any new material added after 1 January 2020 is unlikely to enjoy protection even though the database itself existed at the end of the transition period.
What about UK database right?
From 1 January 2020 the UK will create a new UK database right on substantially the same terms as the EU right but covering the UK only. This will only be available to UK businesses and it will give protection against unauthorised extraction or re-publication in the UK only.
Summing it up?
Subject to transitional provisions, UK businesses will lose protection for their databases in the EEA after 1 January 2021. They will be entitled to database protection in the UK only under a new UK database right. Non-UK EEA businesses will lose protection for their databases in the UK after 1 January 2021 but will retain protection in the remaining EEA.
What can be done?
Although this is not good news for database owners, in practice most databases can be well protected by contract – in particular through agreements with customers and suppliers including website terms and conditions – and also by technological measures. In some, relatively rare, cases copyright protection may be available, but this relates to the structure of the database; it does not protect the data itself.