- Elgar Commentaries series
Edited by Irini A. Stamatoudi and Paul Torremans
Chapter 9: THE DATABASE DIRECTIVE
The first sentence of Article 1 has not attracted controversy. The literature agreed that 'any form' means analogue or digital format and includes any potential future format. Accordingly, databases published on paper as well as electronic databases accessible online and on hard copies such as CD-ROMs are included within the scope of protection. The CJEU confirmed that the definition of a database is broad and was meant to be. Protection therefore subsists irrelevant of the medium. It would have contradicted the Berne Convention, WCT and TRIPs if the CJEU had decided they could not be in all formats. In addition, the CJEU ruled that in order to be protected a database must be fixed. The Directive was silent in this regard except for Recital 13 which stated that a database needed to be stored. Thus a database which is only in broadcast format is not protectable. Nor is a database in purely oral form. The CJEU has interpreted most of the terms of the second sentence of Article 1. A'collection' does not mean a large number of elements. The absence of such requirement may overprotect databases as technically a database composed of only two elements could be protected. However, if Recitals 45, 46 and 47 are taken into account, they should prevent abuses of a dominant position which could result from small but valuable databases. The directive does not define 'independent' but Recital 17 gives examples of subject matter which are not independent, namely a literary, musical or audiovisual work.
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