EU Copyright Law
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EU Copyright Law

A Commentary

  • Elgar Commentaries series

Edited by Irini A. Stamatoudi and Paul Torremans

Presenting a comprehensive and up to date article-by-article analysis of all EU law in the area of copyright, as well as of the underlying basic concepts and principles, this unique book takes into account all recent legislative amendments and pending initiatives in the context of the EU Digital Agenda, as well as the case law of the Court of Justice of the European Union. Published as part of the Elgar Commentaries series, it discusses challenges for the future that will underpin copyright in the years to come. It also presents ongoing discussions in WIPO and assesses the role of copyright in society and economy both from an EU and an international perspective. It is a thorough and in-depth analysis from a team of leading experts in the field, which combines aspects of theory and practice and places copyright in perspective.
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Chapter 9: THE DATABASE DIRECTIVE

Estelle Derclaye

Extract

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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