Download Infosoc Directive

Copyright dilemma:
Access right over databases of
raw information?
Gemma Minero, Lecturer in Law,
Universidad Autónoma de Madrid
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I. Introduction
II. Copyright Legislation and access right
 II.1. International copyright treaties: WIPO
 II.2. What happens in the US?
 II.3. What happens in the EU?
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III. First conclusion
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IV. In particular: sole-source databases
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V. Solutions and proposals
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INTRODUCTION
Where the boundaries between owner’s and user’s access rights
are to be drawn regarding sui generis databases?
Taking into account the nature of these databases (generally,
mere data), the implications of inserting TPMs in order to
control access are significant, especially regarding freedom of
information.
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2. Copyright legislation and access right
2.1. International copyright treaties: WIPO
Art. 11: «contracting parties provide adequate legal protection
and effective legal remedies against the circumvention of
effective technological measures that are use (...) in connection
with exercise of their rights under this Treaty or the Berne
Convention and that restrict acts, in respect of their works,
which are not authorised by the authors concerned or permitted
by law».
It takes into account exceptions: «acts permitted by law»
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2. Copyright legislation and access right
2.1. International copyright treaties: WIPO
They provide only for a minimum protection.
It does not specify whether access can be gained by
circumvention TPMs when they exceed the exclusive
rights of the owner, but neither excludes it.
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2. Copyright legislation and access right
2.2. What happens in the US?
DMCA protects TPMs that control access to a copyright
work or that protect a right in the work.
Clearly, a right to control access.
Exceptions. No fair uses
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2. Copyright legislation and access right
2.2. What happens in the US?
Principle that non-original databases' structures are not
protected in the US system by any kind of copyright
But if a collection of information contains a single copyright
work it (the database) is a work under §1201 DMCA, so the
anti-circumvention prohibition is applied.
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2. Copyright legislation and access right
2.3. What happens in the EU?
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Conditional Access Directive
Protects measures that control access to a service.
But, as many systems will consist of the provision of
copyrighted works, accessing the system and the work often
comes down to the same thing.
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2. Copyright legislation and access right
2.3. What happens in the EU?
 Infosoc Directive
Art. 6.3. It relates to «prevent or restrict acts which are not
authorized by the rightholder of any copyright or any right related to
copyright as provided for by law or the sui generis right provided for
in (...) Directive 96/9/EC».
Art. 6.4 establishes seven selected exceptions.
However, arts. 6 and 9 of Database Directive: i) libraries and like
establishments, ii) teaching and scientific research and iii) public
security and administrative and other proceedings. But are optional
exceptions for Member States.
And what about insubstantial parts of the database?
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2. Copyright legislation and access right
2.3. What happens in the EU?
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Infosoc Directive
Why are there two different lists of copyright exceptions, one for
the exclusive rights in Art. 5 of the Infosoc Directive, and one for
the TPMs in Art. 6 of this Directive?
It may suggest the presence of a separate "right" of the owner
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2. Copyright legislation and access right
2.3. What happens in the EU?

Infosoc Directive
Criticism to the 4º paragraph of art. 6.4 of Infosoc Directive:
«The provisions of the first and second subparagraphs shall not
apply to works or other subject-matter made available to the
public on agreed contractual terms in such a way that members of
the public may access them from a place and at a time
individually chosen by them».
Does the balance shift to the rightholders' or to the users' side?
The answer is clear…
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2. Copyright legislation and access right
2.3. What happens in the EU?

Infosoc Directive
It cannot be argued that users must be provided with means to
circumvent TPMs to benefit from their exceptions. Indeed, art.
6.4 of the Infosoc Directive provided with an specific procedure to
that effect.
Different options regulated by Member States…
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3. First conclusion
In the Digital Era, the array of exclusive rights of the owner would
be unrealistic and incomplete without the right of access
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4. In particular: sole-source databases
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Among the EU databases can be protected both by copyright
and sui generis right.
 Structure
 Contents
The use of insubstantial parts of the database
is, thus, free.
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Which are the non-protected databases?
 Investment insubstantial
 Sole-source databases. ECJ case-law: obtainment vs.
creation of data
 Rent-seeking problems…
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4. In particular: sole-source databases
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A new consultation right.
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Compulsory license system in the Commission’s proposal.
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Is the problem hat TPMs are not technically designed to make a
distinction between substantial and not substantial uses?
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Qualitative exam
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Quantitative exam
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4. In particular: sole-source databases
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The problem is also that Law does not protect against the
circumvention of TPMs protecting un-protectable databases.
Definition of TPMs Art. 6.3 Infosoc Directive
The issue of whether an specific database must be protected
by sui generis right or not is not pacific
Sui generis term: 15 years.
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V. Solutions and proposals
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The appropriate legal protection of TPMs should not allow a
protection of the database broader than the copyright and the sui
generis right.
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Copyright: structure
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Sui generis right: substantial parts.
Competition law is not a solution
There is no access right of the user if copyright works or other subject
matter grounded in freedom of information.
But there is an access right of the user of a sole-source database
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V. Solutions and proposals
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Eliminating the paragraph 4º of art. 6.4 of Infosoc Directive
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Preservation of the exceptions
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Recital 9 of the Conditional Access Directive: Television without
Frontiers Directive
Thanks for your
attention!
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