Sui generis right of the database producer

The sui generis right of the database producer is an exclusive right, distinct from copyright, which protects the investment made in obtaining, verifying or presenting the contents of a database (Articles L. 341-1 et seq. of the French Intellectual Property Code, derived from Directive 96/9/EC). It allows the producer to prohibit the extraction and re-utilisation of a substantial part of the contents, irrespective of any originality in the structure. It thus complements the protection of the database by copyright, which covers only the original architecture.

Conditions of protection

The producer is the person who takes the initiative and bears the risk of the corresponding investments. Protection requires a substantial financial, material or human investment in obtaining, verifying or presenting the contents. The Court of Justice of the European Union holds that investment in obtaining refers to seeking out existing materials and collecting them, and not to the resources devoted to creating the data themselves. A database built as a by-product of a main activity, for instance a fixture list, therefore risks being unprotected for want of an independent investment in collection.

The producer’s rights

The producer may prohibit extraction, that is, the permanent or temporary transfer of all or of a qualitatively or quantitatively substantial part of the contents to another medium, as well as re-utilisation, that is, making that part available to the public in any form whatsoever. The repeated and systematic extraction or re-utilisation of insubstantial parts is also prohibited where it manifestly exceeds the conditions of normal use of the database. The exceptions include extraction for private purposes from a non-electronic database, use for teaching and research, and text and data mining under the conditions of Directive (EU) 2019/790.

Term

Protection runs for fifteen years from 1 January of the calendar year following completion of the database, or following its first making available to the public where that occurs within that period. Any new substantial investment gives rise to a fresh fifteen-year period for the resulting database, which affords dynamic databases potentially unlimited protection.

Litigation

Infringement of the sui generis right is sanctioned through an infringement action before the judicial courts, with the benefit of the saisie-contrefaçon procedure. The claimant must prove, with supporting accounting records, that the investment is real and substantial, which in practice is the main hurdle. Automated scraping of websites and the reuse of listings or product sheets make up most of the litigation, often combined with claims based on parasitism.

Key points

The sui generis right protects, for fifteen renewable years, the substantial investment made in collecting, verifying or presenting the contents of a database, and prohibits the extraction or re-utilisation of a substantial part. It does not cover the creation of the data. To rely on it, document from the outset the human, material and financial costs allocated to each function, and regulate the permitted uses by contract.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats is a patent litigation firm. Matters outside that field, such as trade marks, designs, copyright and IT contracts, are handled by practitioners the firm works with regularly, and by the firm itself when they arise in a patent dispute.

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