Setting up a database requires investments in terms of time, organisation as well as financial resources: it is therefore important to provide the author with a series of legal protections that allow him to economically exploit his work on an exclusive basis; in addition, there is the need to provide rules that allow access to the collected data to be conditioned, especially in the light of a large amount of information and personal or non-personal data contained in the database.

Let us then examine the protections made available by the Italian and European legal system.

What is meant by database?

Databases are defined under Art. 1 of Directive 96/9/EC as a “collection of works, data, or other independent elements systematically or methodically arranged and individually accessible by electronic means or otherwise”.

In other words, databases, or databanks, represent a collection of structured data stored on an electronic medium, created by a person called the “author”, who may be a natural or even a legal person (where the legislation of the EU Member State allows this - Art. 4 of the directive).

The databases will then only be protected if they have a character of originality.

The concept of originality

As pointed out by the Court of Justice of the European Union in Case C-604/10, the originality of the database may result:

  • the choice of materials included in the work, paying particular attention to any previous collections with the same content (selective databases),
  • the choice of how the materials is arranged within the work (non-selective databases).

In the second hypothesis, consideration will be given to the original arrangement of the material through the necessary observation of two concepts:

  • co-ordination, is understood as the links existing between the various data,
  • arrangement, which provides for a certain sequential order of arrangement of the data, such as from the point of view of the subject or on a chronological or thematic level.

What regulations are in place for the legal protection of databases?

Directive 96/9/EC on databases was implemented in Italy with Legislative Decree No. 169 of 6 May 1999: this decree introduced amendments to Law No. 633 of 22 April 1941 on copyright to bring it into line with the aforementioned Directive.

The Directive (and in line with the Italian copyright law) differentiates protection depending on whether the database is recognised as being original or not: more precisely, a distinction is made between copyright (Articles 3-6) and sui generis right (Articles 7-11):

a) Italian copyright

If the database is an original intellectual creation, it can be protected by copyright, which grants the exclusive right to reproduce, adapt, and distribute the database or variations thereof.

The Court of Justice of the European Union, again in Case C-604/10, emphasised that the criterion of originality required for protection can be considered satisfied when the author of the database:

  • expresses its creative capacity with originality
  • makes free and creative choices.

For the author of the database to benefit from the protection provided by the Copyright Act (as amended), no special procedure is required: whoever creates a literary, scientific, or artistic work is automatically protected by copyright, which starts from the moment the work is created until 70 years from the death of the author.

Copyright will then only protect the structure of the database and will not extend to its contents, leaving any existing rights to them unaffected.

To make the existence of the right clear and knowable to all, a copyright notice can be affixed to the work, such as, for example, the text “all rights reserved”, or the symbol © followed by the year of creation of the work:

  • economic rights: guarantee control over the work and remuneration in case of use through sale or license,
  • Moral rights: generally, protect the rights to claim authorship of the work (right of attribution) and to reject any modifications (right of integrity).

b) sui generis right

If, on the other hand, the choice of materials or the structure of the database does not represent an original creation, it is still possible to protect the contents through sui generis rights.

It is a right that is unrelated to the creative or original character of the database, which can only be exercised if the database is the result of a substantial investment: in essence, it does not protect creativity, but the economic investment.

This is also the case law that has established that the sui generis right may be invoked by the author if “the obtaining, verification or presentation of their content has required a qualitatively or quantitatively significant investment” of a financial, material and/or professional nature (CJEU C-604/10).

On the purpose of the protection envisaged by the sui generis right and on the correct determination of its “boundaries”, the European Court of Justice recently gave its opinion in judgment C-762/19 of 3/6/2021.

The duration of the database maker’s right is 15 years, starting on 1 January of the year following the date of completion of the collection and renewable in the event of substantial changes or additions to the database.

Finally, it is important to emphasise that copyright and sui generis right may in any case apply cumulatively if the conditions of protection of each right are fulfilled.

What prospects?

Due to the process of digitisation and the ever-changing scenarios for collecting and storing personal and non-personal information and data (Big Data collection), Directive 96/9/EC on databases can no longer be considered up-to-date and aligned with current needs, thus highlighting the need for regulatory intervention by the EU legislator.

Following the 2017 public consultation conducted by the European Commission on the Database Directive, it emerged that:

  • on the one hand, the original objectives of Directive 96/9/EC are still in line with EU requirements,
  • on the other hand, the directive has not fully achieved its objective of protecting a wide variety of databases, especially about the so-called sui generis right.

Therefore, to facilitate the increasing sharing of data as well as the trade and collection of data generated in the development of the Internet of Things, the European Commission has announced in its work program 2021 and regarding the initiative “A Europe ready for the digital age” that it will revise the Database Directive by 2030 while respecting the principles of the right to privacy and connectivity, freedom of expression, free movement of data and cybersecurity.