Crash course on database rights: Limitations on the database rights
The lawful user of a database has certain rights that cannot be taken away. The normal use of the database should not be restricted. And of course the principle of exhaustion applies to databases as well.
The maker of a database which is made available to the public in whatever manner may not prevent a lawful user of the database from extracting and/or re-utilizing insubstantial parts of its contents, evaluated qualitatively and/or quantitatively, for any purposes whatsoever (article 8(2)). Where the lawful user is authorized to extract and/or re-utilize only part of the database, this only applies to that part.
The rights which a lawful user has may not be given up or restricted in a contract. Such a provision in a contract is null and void (article 15).
The Directive allows Member States to permit extraction or reutilization of substantial parts of a published database without permission of the maker under certain circumstances (article 9). These circumstances are:
- extraction for private purposes of the contents of a non-electronic database;
- extraction for the purposes of illustration for teaching or scientific research, as long as the source is indicated and to the extent justified by the non-commercial purpose to be achieved;
- extraction and/or re-utilization for the purposes of public security or an administrative or judicial procedure.
As with other intellectual property rights in the EU, the sale of objects comprising a specimen of a database can exhaust certain database rights with respect to that copy. According to article 7, section 2(b), the first sale of a copy of a database within the Community by the rightholder or with his consent shall exhaust the right to control resale of that copy within the Community. Such a copy can thus be resold by anyone. However, it is not permitted to take that copy and e.g. put its contents on a Website so that others can access it.
The creator of a database has a database right regardless of any intellectual property rights resting with items in the database. So, a photo book can be a database (if the criteria are met) even though the creator never asked the copyright holders permission. However, the database creator cannot exploit the database without permission.
Further, if a database is lawfully made available, the rights of the copyright holder for an element in the database should not be adversely affected. So, for instance, he can still act against people who redistribute his work after having extracted it from the database.