The European Commission has launched a public consultation on whether to change the Database Directive, which gives legal protection to certain databases in the EU. Any business that extracts value from its databases should consider whether to respond to the consultation.

The Directive was introduced in 1996. It aimed to encourage the development and exploitation of databases in the EU by providing for two types of legal protection – (i) copyright in original databases; and (ii) a “sui generis” database right for databases in which there has been substantial investment.

The database right aimed to extend legal protection beyond original databases to cover databases in which creators have made a substantial investment in collating, verifying and presenting data (whether original or not). Since its introduction, the database right has caused controversy in courts across the EU as database creators and judges grappled their way through unfamiliar language in the Directive. In 2004, the EU Court of Justice effectively narrowed the scope of the database right. The court said that originators of data couldn’t rely just on their effort in creating data in a database to give rise to a database right - they must also have made a further investment in the database itself, not just its constituent data.

The European Commission last reviewed the Database Directive back in 2005. Despite indications at the time that the Directive wasn’t encouraging the development of databases in the EU, the Directive wasn’t amended. The Commission is now consulting on the legislation again as part of its ambition to develop the European data economy.

The consultation is timely, particularly as businesses with operations in the UK need to consider how best to maintain legal protection for their databases after Brexit.