- A. Version history
- B. Scope of application
- C. Section 4.a. Clarification of the granting of rights
- D. Section 4.b. Modified material through inclusion in own database
- E. Section 4.c. Attribution
- F. Special features of the Share Alike (SA) attribute
- G. Special features of the No Derivatives (ND) attribute
- H. Special features of the Non-Commercial (NC) attribute
Literature: German CC FAQ, 5. Databases, data and AI, https://perma.cc/DN47-6X53; English CC FAQ, https://perma.cc/C5XU-VLMV; Simone Aliprandi, Open licensing and databases, Vol. No . 1 2012; Till Kreutzer, German UNESCO Commission e. V. (ed.), Open Content – A practical guide to using Creative Commons licences, 2nd edition 2016; Frequently asked questions about data and CC licences, https://perma.cc/EYS2-VC4T; Julian Große-Ophoff/Hendrik Risthaus, The sui generis right for databases of public bodies in the light of recent case law and European data legislation, GRUR 2022, 1649; Andreas Wiebe, Protection of machine data by the sui generis protection right for databases, GRUR 2017, 228.
1 Section 4 regulates the scope of application of the licence with regard to databases. Letter a clarifies the extent to which the right to the entire database and substantial parts thereof is granted. Letter b regulates when a database is considered modified material. Finally, letter c clarifies that all conditions of Section 3.a must be complied with when the entire database or substantial parts thereof are passed on. Unlike its previous versions, version 4.0 of the CCPL thus contains, for the first time, provisions on sui generis databases.
A. Version history
2 The older, non-ported versions of the CCPL do not contain any explicit provisions on databases. However, an exception is madein the ported versions , in particular the European versions, which include provisions on the handling of databases, see for example the ported German version of the CCPL in version 3.0; there , databases are explicitly excluded from any protection , and the licensor waives all rights arising from possible database protection .
3 The reason for the original lack of provisions on databases in the licences up to version 3.0 was that the original CC licences were based on US law. In the US, however, databases do not enjoy copyright protection, which is why corresponding provisions were missing. With the increasing spread of CC licences in Europe, it became necessary to include corresponding provisions with regard to the European protection of databases.
4 With version 4.0 of the CC licences, databases are now also regulated in the licence text – but differently than in the aforementioned CC BY-SA 3.0 DE.
5 When it comes to database protection, a distinction must first be made between database works (Section 4 (2) UrhG) and databases (Section 87a ff. UrhG). In the case of database works, the creative act of creating the database work is in the foreground, whereby copyright protection is achieved on the basis of the selection or arrangement of the elements. The database work is ultimately a special case of the collection regulated in Section 4 (1). A "classic" example of a database work is a list of poems in digital form that has been compiled individually.
6 The provisions of CCPL version 4.0 are limited to databases in the latter sense due to the reference to the European Database Directive in Section 1.j. Only rights existing in such databases, known as sui generis database rights, are regulated in CCPL version 4.0. Version 4.0 of the licence also no longer includes ported versions. The aim of the new version 4.0 was also to adapt the licences "more closely to global use and the consideration of different legal systems".
B. Scope of application
7 Sentence 1 of Section 4 of the CCPL initially stipulates that the following provisions of letters (a) to (c) shall apply if the licensed rights include sui generis database rights. Paragraph 2 of Section 4 clarifies that these provisions only supplement and do not replace the obligations under the licence insofar as the licensed rights include other protectable rights.
8 On the one hand , the scope of application is limited to sui generis database rights as defined in Section 1.m. These are essentially rights arising from the EU Database Directive or corresponding provisions in other jurisdictions.
9 On the other hand, according to all three provisions of letters a to c, it is necessary that either the database as a whole or substantial parts thereof are involved. The individual data records themselves are not subject to the provisions of Section 4. Here, too, the CCPL is based on the wording of the EU Database Directive, which also refers to "substantial parts" of the database. Only to the extent that database protection exists under the EU Database Directive or other essentially functionally equivalent regulations should the scope of Section 4 of the CCPL apply.
10 This leaves open the question of what applies to individual data sets. Section 4 obviously does not contain any provisions on this.
11 It could be argued that the provisions of Section 4 apply in addition to the general provisions, which then apply to individual data sets. However, if this were the case, the provision in Section 4.c would be superfluous, as the applicability of the provisions in Section 3.a would already follow from Section 3.a itself. In other words, if individual data sets may only be used under the conditions of Section 3.a, this also applies per se to the entire database – a special provision in Section 4 would then be superfluous.
12 In addition to the above interpretation, it could also be argued that Section 4 supersedes the general provisions, so that only the transfer of the entire database or substantial parts thereof would be permissible, but not individual data records. However, such an interpretation also makes no sense, as in this case it would not be possible to use the database in a practical manner. The use and, where applicable, further processing or transfer of individual data elements is a typical application scenario. Such an interpretation is also unlikely to be intended.
13 Ultimately, the Creative Commons organisation seems to assume that, in the event of the applicability of sui generis database rights, the provisions of the CCPL only apply if the scope of application of the sui generis database rights is opened up, but that otherwise, the use of databases and individual data records is possible without restriction, insofar as the scope of application of the EU Database Directive or comparable regulations does not apply. The Creative Commons organisation explains this as follows in its FAQ: "It is important to remember that sui
"It is important to remember that sui generis database rights exist in only a few countries outside the European Union, such as Korea and Mexico. Generally, if you are using a CC-licensed database in a location where those rights do not exist, you do not have to comply with licence restrictions or conditions unless copyright (or some other licensed right) is implicated."
14 This also corresponds to the general principle in German copyright law that contractual agreements – such as those of the CC licences – cannot create new restrictions on use or even new property rights .
15 If the scope of regulation of sui generis database rights does not apply, then only Section 3 applies. If the database cannot be protected because there is no sui generis database protection at all in the respective country or because only insignificant parts of the database are affected, then Section 3 applies.
16 If the individual data record is protected by copyright, for example because it is itself a copyrighted work, such as a longer text that reaches the required level of creativity, or because it is an image or other copyrighted work, the obligations of Section 3 apply accordingly to the individual data record.
17 The question of whether the provisions of the CCPL also apply if the individual data record is not protected by copyright is not explicitly regulated in the licence. The definition in Section 1.h refers to a "work of literature or art" as well as databases as the subject matter of the licensed material. At the same time, however, it also mentions "other material" that may fall under the definition. The definition is therefore not limited to copyrightable material, but includes an "other material" clause that at least does not explicitly refer to copyright protection. This is different in the definition of "modified material" in Section 1.a. There, the material must be "protected by copyright or similar rights". Section 4.b stipulates that if the database or substantial parts thereof are incorporated into a separate database, the separate database shall be considered modified material. However, this leaves unanswered the question of what applies in the case of the unaltered use of individual data records without such a transfer. Ultimately, the question arises as to whether, in cases where individual data sets are not eligible for copyright protection, the applicability of the restrictions and rights under the CCPL should be realised at the contractual level through the application of the CCPL, regardless of copyright eligibility, or whether the CCPL is simply inapplicable in this case.
18 The German chapter of Creative Commons seems to assume the latter case, i.e. in the absence of copyright protection, the CCPL is not assumed to be applicable. At least this is what it states in its FAQ on this subject:
"Without further explanation, when CC licensing the database, the individual elements can also be used in accordance with the licence (however, the elements of a database are of course only subject to the licence terms if they are protected by copyright or related rights [...])."
19 This is also consistent with Section 8.a of the CCPL, according to which the CCPL should not be interpreted in such a way that it covers uses that are permissible without permission from the CCPL. As a result, it can be assumed that the requirement of copyright protectability, which requires the stricter definition of modified material in Section 1.a, is also a prerequisite for the applicability of the CCPL provisions in the case of a work as a whole. Even if individual data sets are not "modified material," it can therefore be assumed that the obligations and rights of the CCPL only apply if the individual data set is protected by copyright. If, on the other hand, the individual data sets are not copyrightable material, CCPL only apply if the individual data record enjoys copyright protection. If, on the other hand , the individual data records are copyright unprotected material, this material may be handled within the scope of what is permitted by law; restrictions or obligations under the CCPL are then irrelevant. It should be noted, however, that restrictions may arise for other reasons, such as general personal rights, data protection or other reasons outside the scope of copyright law, as Section 2.b.1 also clarifies.
20 A prerequisite of Section 4 is that the database as a whole or substantial parts thereof are affected. Only insignificant parts of the database are not to be covered. Here, too, the CCPL follows the wording of the EU Database Directive.
21 The question of when a "substantial portion" can be assumed is answered in the FAQ of the Creative Commons organisation with reference to "the law in the relevant jurisdiction".
22 Section 4.c clarifies that the information obligations of Section 3.a only apply if "the entire contents of the database or substantial parts thereof" are involved. The use and disclosure of only individual data records does not trigger the obligations of Section 3 of the CCPL. The same should apply if significant parts of the database are extracted, but only individual, insignificant data records are then disclosed. This is because the information obligations of Section 3.a generally only apply to disclosure and not to purely internal use. It cannot make any difference whether the individual data records integrated into reports are extracted directly from the database or, after extraction, are first stored locally at the transmitting location.
23 Of course, the situation may be different if individual data records are protected by copyright and are themselves licensed under the CCPL.
24 Ultimately, it will depend on the individual case and the form in which the individual data records are passed on. If, for example, the data records are reproduced on a large scale as a data series in a single publication or transmitted to third parties and the relevant threshold of materiality is exceeded, this may well constitute "sharing" of "substantial portions" of the database.
C. Section 4.a. Clarification of the granting of rights
25 Section 4.a first clarifies that the grant of rights under Section 2.a.1 allows the entire database and substantial parts thereof to be "extracted, reused, reproduced and passed on". Such a clarification is in itself superfluous, since Section 2.a.1 explicitly refers to the licensed material, which in turn, according to the definition in Section 1.h, may also be a database.
26 The inclusion of this provision can at best be explained from a historical perspective with regard to the ported versions of the CCPL in version 3.0, where, due to some special provisions relating to databases, there was discussion as to whether the granting of rights also extended to these databases and substantial parts thereof.
27 As explained above in paragraph 16, it can be assumed that the granting of rights alsoextends to individual data records insofar as these are copyrightable in their own right. Even if this is not explicitly stated in the wording of the licence text, no other interpretation can be intended. The scope of application of the CCPL would be void if, for example, an image database were to be licensed under the CCPL in abstract terms, but each individual image contained in the database were to be excluded from the granting of rights.
28 This understanding is also shared by the German chapter of Creative Commons. In its FAQ, it states that when licensing a database without further notice, the individual database elements are also licensed under the CCPL.
29 At the same time, however, the German chapter of Creative Commons also points out that it is in principle also possible to license the database on the one hand and its contained elements on the other under different licences, provided that this is expressly indicated.
30 In its English-language FAQ, the Creative Commons organisation points out that, in addition to the individual data sets in the database , the database model, i.e. the structure of the data, the data entry and output sheets and, in individual cases and by way of exception, individual fieldnames in the database may also be eligible for copyright protection.
31 In addition to different licensing of the database as such on the one hand and the individual data records on the other, different licensing of individual data records is also possible, for example because the individual data records are different types of works. Even then, however, it must be made clear which elements are covered by which licence.
D. Section 4.b. Modified material through inclusion in own database
32 The provision in Section 4.b establishes a parallel between licensed material and databases. If the database as a whole or in substantial parts is incorporated into one's own database, the own database shall be considered modified material. However, the provision does not apply if only individual data records are transferred. In this case, the material is not necessarily modified. Nevertheless, the individual data record may also be protected by copyright and thus be subject to CC licensing.
33 The question of whether or not modified material exists is particularly relevant in the case of licences with the Share Alike condition.
34 The question arises as to whether the provision merely has a fictitious effect, which would be supported by the fact that, if its conditions are met, the own database is merely "considered" to be adapted material. However, such an interpretation is contradicted by the English language version of the licence. There, it states on the legal consequences page of the provision "then the database [...] is Adapted Material". There is therefore much to suggest that it should beassumed that such use of the database constitutes modified material and that, in this case, no fictitious effect should be applied.
35 It should be noted, however, that the provision contains a restriction which may render it inapplicable in certain cases. The prerequisite for its applicability is that the database, or substantial parts of it, are included in a database to which the licensee has "sui generis database rights". Strictly speaking, therefore, the provision does not apply if the data records are transferred to a completely unrelated database to which the licensee does not have such sui generis database rights. However, there are good arguments that this restriction is ultimately irrelevant. This is because the definition of modified material in section 1.a in conjunction with the definition of licensed material in section 1.h already leads to the same conclusion. Databases are also explicitly mentioned as licensed material under Section 1.h. According to Section 1.a, modified material also includes material in which licensed material is contained in a manner "which requires consent due to the copyright or similar rights of the licensor". This is precisely the case when a database or essential parts thereof. Here, it already follows from Section 87b (1) sentence 1 UrhG that permission is required in the event of reproduction of the database or, depending on the nature or extent, of substantial parts thereof. In addition, Section 4 (2) suggests that the legal consequences resulting from the definitions and the other provisions of the CCPL are merely supplemented by Section 4 merely supplement, not replace, the legal consequences arising from the definitions and other provisions of the CCPL. Although the clarification in this paragraph refers to cases in which "the licensed rights include other copyrights or similar rights", this provision nevertheless also suggests that the provisions contained in Section 4 are merely intended to supplement the other applicable provisions.
36 As a result, the provision contained in Section 4.b is therefore purely declaratory in nature. Furthermore, it is too narrow, as it excludes integration into third-party databases. If one also considers the provision from the perspective of general terms and conditions law, one gets the impression that it could be misunderstood as an exception to the fundamentally broader definition of modified material. This ambiguity could ultimately be to the detriment of the user, i.e. it could lead to the transfer of databases licensed under the CCPL to third-party databases does not result in modified material. Even if the better arguments suggest that the provision is merely intended to clarify and accompany the aforementioned definitions, the risk ofthe provision being classified as ambiguous cannot be completely dismissed.
37 In one respect, however, the provisions of the CCPL go beyond what the German legislature has regulated with regard to database protection. According to both section 4.b and the definition in section 1.a, the database into which the CC-licensed database or parts thereof have been integrated is to be considered modified material. This provision becomes relevant when using the Share Alike condition. In this case, modified material must be distributed under the original licence. Even if this could be technically separated, the third-party database elements should also be licensed under the CCPL. If, when considering the handling of databases, the entire database is not taken into account, but only the individual data records as a point of reference, it could even be argued, with regard to the result, that at least with regard to the individual data records, a strict copyleft effect. This is because the effect goes beyond the individual data records and, due to the aforementioned provisions, also affects data records that were not originally covered by the CCPL. This could only be avoided by separating the databases.
E. Section 4.c. Attribution
38 Section 4.c clarifies that when passing on database content or substantial parts thereof, the provisions of Section 3.a must be complied with. As in the case of Section 4.a, this provision is purely declaratory in nature . This is because the applicability of Section 3.a to databases already follows from the explicit inclusion of databases in the definition of licensed material under Section 1.h.
39In principle, the obligation to attribute authorship under Section 4.c does not apply to individual data records, because the wording of Section 4.c only refers to the database as a whole or substantial parts thereof. This is only logical, since the EU Database Directive only applies to the database as a whole or substantial parts thereof. Therefore, if only individual database elements are taken from a CC-licensed database without exceeding the materiality threshold, no attribution is required under Section 4.c. Nor does Section 3.a, when applied directly, provide for anything else. Insofar as the definition in Section 1.h also mentions databases as licensed material, this only applies to the database as a whole and not to the individual database element. Of course, the copyright protection of an individual database element may give rise to disclosure requirements. However, these then arise from the copyright protection based on the quality of the individual database element and not on the basis of database protection.
40 If, on the other hand, the database as a whole or significant parts of it are used, the obligation under section 4.c applies. In this case, attribution is requiredunder section 3.a . In this case, it should not be necessary to label individual data recordsin accordance with Section 3.a. However, at least the database as a whole must be labelled. This can be done at a central location if it is clear that all data records are affected.
41 However, the situation is different if, for example, a CC-licensed database as a whole or substantial parts thereof are integrated into a separate database. If this separate database, which then contains the CCPL-licensed database, is also to be distributed in its entirety under the CCPL, a single reference in accordance with Section 3.a at a central location is sufficient. However , from a licensing perspective , it is not necessary to license the separate database in its entirety under the CCPL. At least if the Share Alike condition has not been selected, the separate database containing the CC-licensed database would be modified material according to Section 4.b. However, the obligation to attribute and thus also to license under the CCPL without Share Alike only applies to the licensed material (see Section 3.a.1.C), i.e. only to the original database licensed under the CCPL . If, in this case, the company's own database is not to be licensed under the CCPL, but only the original material, then it must be clear which individual data records are covered by the CCPL and which are not. This is also necessary because, otherwise, a third party who extracts parts of a mixed database would not be able to determine whether these parts are part of the database licensed under the CCPL – and whether they are thereby possibly taking over the database licensed under the CCPL in its entirety or in substantial parts.
42 As a result, the above means that there is an obligation to label the CC-licensed database elements that have been taken over at least at the database level or at the level of the individual elements in a mixed database, i.e. if CC-licensed elements are contained in a database that is otherwise subject to a different licence.
F. Special features of the Share Alike (SA) attribute
43 If a database licensed under the CCPL is passed on to third parties, this database must, in principle, be passed on under the CCPL in accordance with Section 3.a.1.C. 44 If a licence variant with the Share Alike condition is used, for example in the case of CC BY-SA, the obligations go even further. If
44 If a licence variant with the Share Alike condition is used, such as in the case of CC BY-SA, the obligations go even further. If modified material is provided, Section 3.b stipulates that this modified material must be passed on under a modification licence.
45 Section 4.b now stipulates that when a database or substantial parts thereof are incorporated into one's own database, the latter is considered modified material. As a result, one's own database must then be distributed under the original licence or a modification licence when using the Share Alike condition. As described above, this triggers the so-called copyleft effect of the CCPL. In view of the individual data records, this can certainly be regarded as a strict copyleft effect, since only the original licence or a modification licence may be used to distribute the database. As described above, this triggers the so-called copyleft effect of the CCPL. With regard to the individual data records, this can be considered a strict copyleft effect, as the mere transfer of Share Alike-licensed data records into one's own database is sufficient to trigger the obligation to sublicense all data records in this own database under the original licence. 46 If one wishes to avoid the legal consequence of the copyleft effectof sublicensing one's own data records due to the transfer of a database licensed under Share Alike, the only option is to
46 If one wishes to avoid the legal consequence of the copyleft effect of sublicensing one's own data sets due to the transfer of a correspondingly Share Alike-licensed database , the only option would be to technically separatethe data sets from each other and store them in separate databases. At least the wording of Section 4.b should allow for such a separation.
47 However, it should be noted that the obligation to pass on data under the CCPL with the Share Alike condition only applies to individual data sets if they are protected by copyright and are also covered by this licence. With regard to the latter aspect, as explained above, it can generally be assumed that both the database as a whole and individual data sets are licensed under the same licence, unless there are specific indications that the individual data sets are licensed elsewhere.
48 If only individual data records below the materiality threshold are taken from a correspondingly licensed database, the obligations of the Share Alike condition are only applicable if the individual database element is copyrightablein its own right .
G. Special features of the No Derivatives (ND) attribute
49 The ND (No Derivatives) module prohibits the distribution of modified material. It should be noted, however, that the licence in Section 2.A.1.b explicitly permits at least the creation and reproduction of modified material and only prohibits its distribution.
50 When does the handling of databases lead to modified material within the meaning of the No Derivatives module? Section 4.b clarifies that the inclusion of a database in its entirety or substantial parts thereof in another, separate database leads to the qualification of the separate database as modified material, see above. As explained above, such a database may be created but not distributed .
51 If an individual data record is eligible forcopyright protection and is also subject to the same licence with the condition No Derivatives (which should be the norm, see above), then nothing else applies in this regard other than what applies to the database as a whole: The data record may be extracted, reproduced and also passed on. It may also be edited in such a way that modified material is created, but this may not be passed on.
52 What applies to individual data records that are not protected by copyright? In this regard , at least the clarifying provision in Section 4.b does not apply. However, the fact that it does not apply does not mean that modified material cannot exist. Section 4(2) makes it clear that Section 4 itself only supplements the obligations under the CCPL and does not replace them. Ultimately, it must be examined whether the individual data record already qualifies as modified material under Section 1.a. However, the definition of modified material in Section 1.a also requires that this material be "protected by copyright or similar rights". If, however, it is precisely this protectability that is lacking in the individual case, then even according to the definition in Section 1.a, the existence of modified material is ruled out. As a result, the individual data record is subject to the obligations of the CCPL with the No Derivatives module only if it is copyrightable in its own right. If the individual data record is not copyrightable, the obligations of the CCPL do not apply even with the No Derivatives module .
53 If substantial parts of the database or the database as a whole are passed on, but this does not take place in the form of a database itself, it depends on whether the use of the data can still be regarded as an act requiring consent.
54 Parts of the literature apparently assume broad protection of sui generis databases. Thus, it is not necessary that the extraction from a database be for a competitive or commercial purpose; nor does the extraction even have to be aimed at the creation of a new database.
55 In its decision on "market studies" , the Federal Court of Justice did not reject the reproduction of data from a database , at least not obviously, in the case of the publication of a few figures showing the market shares of individual manufacturers of electronic devices in the form of two or three diagrams , but referred the matter to the court of appeal for clarification.
56 The ECJ has clarified that database protection is limited to acts of extraction and reuse within the meaning of Article 7 of the EU Database Directive; mere acts ofquerying databases are not covered by the scope of protection .
57 The question of when a work can be considered a derivative work can ultimately only be answered by looking at the specific use of the data. The reference made by Creative Commons in its FAQ to the applicable legal situation in individual countries is not particularly helpful.
58 Ultimately , it therefore depends on what the respective licensor of a database licensed under the No Derivatives module considers permissible. It is entirely plausible that, at least in cases where the data records can be identified as such after transfer, it can be assumed that modified material is involved. If, on the other hand, the individual data is based on own calculations or representations which no longer contain the original data in an identifiable form, it could be argued that no modified material is involved. For example, an annual report may be based on hundreds of individual data items from a company. The figures and data cited in the report itself may also constitute a reproduction of data from databases. However, if the figures reproduced are exclusively independent calculation results from data that in turn serves merely as a basis for these calculations, then it is difficult to regard such an annual report as "modified material" from a database of the data used to calculate the figures contained in the annual report. Ultimately, however, it remains to be seen how case law will fill the gap with regard to corresponding licences.
H. Special features of the Non-Commercial (NC) attribute
59The Non-Commercial module of CC BY-NC, for example, prohibits in sections 2.a.1.A and B the reproduction and distribution of licensed material and modified material for commercial purposes. Strictly speaking, permission is limited to reproduction and distribution for non-commercial purposes, which ultimately amounts to a prohibition of commercial use. Section 4.a then further clarifies that both the entire content of the database and substantial parts thereof may only be extracted, reused, reproduced and distributed for non-commercial purposes.
60 It should be noted that, in this module too, the restriction to non-commercial use applies only to the database as a whole and to substantial parts of it. Individual data records that do not exceed the materiality threshold are only covered by the prohibition on commercial use if they are independently protected by copyright.
61 In purely textual terms , Section 4.a thus goes beyond what is regulated in Section 2.a.1, because according to Section 4.a, "extraction" and "reuse" are already subject to the subject to the proviso of non-commercial use and not, as regulated in Section 2.a.1, "reproduction" and "distribution". Ultimately, the licence text uses these terms in line with the wording of the EU Database Directive.
62 In one respect, however, the Non-Commercialmodule is stricter than other attributes, such as No Derivatives or ShareAlike: it covers not only cases of distribution to third parties, but also reproduction. And reproduction already takes place when the database is, for example, started as a computer programme and loaded into the working memory .
63 With regard to the restriction of the Non-Commercial module to the database and substantial parts thereof, the same applies as for the No Derivatives module. It refers only to the database as a whole or to substantial parts thereof. Individual data records , on the other hand , can be used without any restrictions, including for commercial purposes, provided that they are not themselves protected by copyright and do not exceed the materiality threshold.
Creative Commons License
Open Access Kommentar, Commentary on Section 4 – Sui Generis Database Rights is licensed under a Creative Commons Attribution 4.0 International License.
