Copyright dilemma: Access right over databases of raw information? Gemma Minero, Lecturer in Law, Universidad Autónoma de Madrid

1.  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?  III. First conclusion  IV. In particular: sole-source databases  V. Solutions and proposals 2

1. 1. 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. 3

1. 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» 4

1. 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. 5

1. 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 6

1. 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. 7

1. 2. Copyright legislation and access right 2.3. What happens in the EU?  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. 8

1. 2. Copyright legislation and access right 2.3. What happens in the EU?  Infosoc Directive Art 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? 9

1. 2. Copyright legislation and access right 2.3. What happens in the EU?  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 10

1. 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… 11

1. 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… 12

1. 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 13

1. 4. In particular: sole-source databases  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.  Which are the non-protected databases?  Investment insubstantial  Sole-source databases. ECJ case-law: obtainment vs. creation of data  Rent-seeking problems… 14

1. 4. In particular: sole-source databases  A new consultation right.  Compulsory license system in the Commission’s proposal.  Is the problem hat TPMs are not technically designed to make a distinction between substantial and not substantial uses?  Qualitative exam  Quantitative exam 15

1. 4. In particular: sole-source databases  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. 16

1. V. Solutions and proposals  The appropriate legal protection of TPMs should not allow a protection of the database broader than the copyright and the sui generis right.  Copyright: structure  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 17

1. V. Solutions and proposals  Eliminating the paragraph 4º of art. 6.4 of Infosoc Directive  Preservation of the exceptions  Recital 9 of the Conditional Access Directive: Television without Frontiers Directive 18

Thanks for your attention!