120 With version 4.0 of the CCPL, sui generis database rights were included in the licence text. The provision is limited to sui generis database rights (regulated in Sections 87a ff. UrhG) as distinct from database works (cf. Section 4 (2) UrhG). Due to the reference to the EU Database Directive and the reference to "essentially equivalent rights elsewhere in the world," the definition does not establish a separate scope of protection, which would not be possible from a copyright perspective. Rather, the regulation is based on the scope of protection of the EU Database Directive. Only to the extent that a database is protected by copyright under the EU Database Directive or national implementing laws or other national regulations with the same thrust shall the relevant provisions of the CCPL also apply.
121 Insofar as sui generis databases do not enjoy protection (as is the case almost everywhere outside the EU), there is no need for a licence due to the lack of a requirement for permission to use them.
122 The prerequisite for protection (in Germany according to Section 87a UrhG) is that the creation of the database required a substantial investment. If this criterion is met, the database producer has the exclusive right under Section 87b (1) UrhG, the database producerhas the exclusive right to "reproduce, distribute and publicly reproduce the database as a whole or a substantial part thereof in terms of type or scope". This is therefore a "database producer's right", which protects not the individual data records as such, but their compilation as a database and the investment behind it. Individual data records from a database can generally be used freely, unless either the so-called materialitythreshold is exceeded – which is the case if the data constitutes a "significant part of the database"
123 Even though the CC licence refers to the Database Directive, it should nevertheless be noted that the sui generis protection of databases by the CCPL is contractual in nature and only applies inter partes, i.e. between the parties to a licence agreement concluded on the basis of the CCPL and not to everyone. However, insofar as the contractually agreed protection coincides with the statutory protection – which is to be achieved by reference to the Database Directive – this again results in an absolute right under the respective national laws implementing the Database Directive, which applies inter omnes, i.e. to everyone, and does not require an individual contractual relationship based on the CCPL.
124 A prerequisite for protection as a database is a "substantial investment in terms of nature or extent" within the meaning of Section 87a (1) sentence 1 UrhG. In the literature, it is assumed that such an investment can be assumed if the effort associated with setting up the database is "not insignificant and has provided the provider with an economically exploitable position which he would normally only share with third parties in return for remuneration"
125 If a substantial investment can be affirmed, ultimately a wide variety of types of databases are conceivable that can enjoy copyright protection. Creative Commons cites as examples "review databases, collections of advertisements from various newspapers, information databases with timetables, telephone directory databases, poetry collections" and "sports schedules".
Creative Commons License
Open Access Kommentar, Commentary on Section 1.j./k./i. Sui Generis Database Rights is licensed under a Creative Commons Attribution 4.0 International License.
