Minimize database rights to favour and maintain accessibility to digitized materials

A – Issue at stake

  • Museums undertaking mass-digitization operations usually disseminate the artworks internally or online in the form of digital inventories, catalogues or galleries. Such inventories may be qualified as databases under law, which can also be protected by copyright law.1
  • In addition to issues of copyright applying to the individual items in the collection, the question of copyright protection of the database itself arises. Not every compilation of data is protected by law,2 and the protection of databases greatly varies depending on jurisdictions.
  • It is generally accepted that databases (or the similar concept of “compilations” in the United States) may be protected by copyright if they constitute an intellectual creation,  that is, if some originality lies in the selection, arrangement or coordination of the content.3 This right is however limited in that the copyright in such a database “extends only to the selection, coordination, and arrangement of the materials [and does] not affect the public’s right to access and use the individual images”4 not otherwise copyrighted. Many limitations and exceptions (in the EU)5 or arguments in favor of fair use (in the United States) also allow lawful users to exploit databases and their contents.
  • In addition, there exists in Europe a sui generis “database right” which gives the database maker a strong monopoly,6 allowing it to prohibit the extraction (transfer of data to another medium) and/or reuse (making available to the public) of the whole or of a substantial part of the database’s content,7 as long as it made a substantial investment to obtain, verify and/or present the data collected.8 This prohibition applies to all contents in the database, irrespectively of their individual copyright protection (or absence thereof).
  • This database protection is controversial. Notably, a 2017 consultation has shown that views are split regarding whether the EU Database Directive achieves a good balance between the rights and interests of rights holders and users, allows sufficient re-use of data, and allows to achieve an adequate balance between database owners’ rights and users’ needs.9
  • For museums and users of content digitized by museums specifically, this sui generis right may, according to some authors, prohibit the reuse of works that are in the public domain or otherwise out of copyright just because they have been included in a database.10 In light of this arguable theory, this sui generis right clearly hampers access to digital copies of artworks and puts unnecessary barriers on all types of uses of databases, including in relation to innovative techniques like text and data mining. It is therefore not desirable with regard to the accessibility of digital copies.

B – Clarifications

  • Museums who benefit from the sui generis database right (as creators of databases) should generously license it to allow free access and, when possible, re-use of its contents for non-commercial purposes by third parties.
  • Museums should not unreasonably prevent access to and re-use of their databases for commercial purposes by third parties. However, they may request payment of a compulsory licence in that regard.
  • The sui generis database right itself should be reviewed by legislators in order to avoid unduly restrictions on access and re-use of works that have fallen in the public domain.