Coinciding with the tenth anniversary of its introduction, the European Commission has just completed a consultation on the future of database rights. This follows publication of the Commission's own evaluation on 12 December last year. The 1996 Directive (96/9/EC) on the legal protection of databases (implemented in the UK through regulations amending the Copyright, Designs and Patents Act 1998) introduced a two-tier approach to intellectual property protection for databases. Firstly the Directive galvanised copyright protection for any database that constituted an original intellectual creation. At a lower level, a new "sui generis" database right was introduced to protect non-original databases – defined as collections of independent works, data or other materials (arranged systematically and methodically) where these are individually accessible (electronically or otherwise). Therefore in situations where the originality standard of a copyright work has not been met, the database right looks to offer legal protection where there has been a significant investment in 'obtaining, verifying and presenting' contents of that database. The right generally corresponds with 'sweat of the brow' copyright, which existed pre-1996 in the UK and had given IP protection to compilation such as television listings and phone directories. Under the database right, qualifying databases created within the EEA are protected for 15 years against unauthorised extraction or re-utilisation (where 'substantial' or carried out on a repeated basis).

In its recent evaluation, the Commission attempts to analyse whether introduction of the database right has achieved its original objective of stimulating the European database industry. In making this analysis, the Commission considered the effect of European Court of Justice (ECJ) decisions in the parallel Fixtures Marketing (football fixture lists) and BHB/William Hill (runners & riders lists) cases at the end of 2004. In those judgements, the ECJ adopted a narrow (and, arguably, an absurd) interpretation of the scope of protection offered by the database right. These rulings have effectively curtailed the rights of organisations that create as well as compile the data. Muddying the legal waters further, the Commission's evaluation also observes a divergence in national approaches to interpretation of the database right across Europe. Perhaps most worrying of all for Brussels, empirical evidence points to the database right not being the engine for innovation and growth in the European database market as originally expected. The Commission notes the rate of database production in Europe appears to have remained largely stationary since the introduction of the database right (3,095 databases were created in 2004 compared to 3,092 in 1998). In addition, the ratio of database production in the United States compared to Europe has actually accelerated from 2:1 (in 1996) to 3:1 (in 2004). This is despite the fact that in the US courts, intellectual property protection for non-original compilations of data is largely non-existent. In consulting with interested parties, the Commission has put forward four possible future policy options for this area. These are:

1.  repealing the whole Database Directive and going back to a pre-1996 patchwork legal position across each Member State;

2.  withdrawing the 'sui generis' right but maintaining a harmonised level of copyright protection for original databases (reflecting the US position more closely);

3.  amending the definition of the sui generis right to try and clarify the legal position in the aftermath of the ECJ decisions in Fixtures Marketing and BHB/William Hill; or

4.  maintaining the current regime.

There is no indication as yet as to when the Commission is expected to report its conclusions as a result of its consultation and evaluation.