Europe's 'Database Right' Could Throttle Open Data Moves There

from the worse-than-useless dept

Wed, Feb 13th 2013 3:28am — Glyn Moody

One of the more benighted moves by the European Union was the introduction of a special kind of copyright for databases in 1996: not for their contents, but for their compilation. This means that even if the contents are in the public domain, the database may not be. Thanks to a recent court judgment in France, this "database right" now threatens to become a real danger for the burgeoning open data movement in Europe (original in French).

The case concerns the site NotreFamille.com ("Our Family"), which wanted to obtain a copy of various public records held in digital form by the department of Vienne in France. These were things like parish records and census information for the 1600s, 1700s and 1800s -- all clearly in the public domain. But the region refused to make the digital versions of the records available, even though NotreFamille.com offered to pay, on the grounds that it had a separate database right in the digitized collection that enabled it to withhold what would otherwise be released as open data:

in order to justify an exclusive right to its database, the department of Vienne told the court it had "committed more than €230,000 [about $300,000] to this project and that the digitization of documents archive had taken eight years." This concerns a normal investment made in the context of the public service mission of the department, but it is sufficient, according to the court, to establish that the department is indeed a "database producer" with an exclusive right on the latter that allows it not to meet the requirement of open data.

That's really bad news, since it effectively guts the requirement to make public information freely available as open data, if held in a database that required some effort to put together, as is usually the case. Moreover, other courts in the European Union may well take a similar view, since the database right is Europe-wide.

This is galling because, unlike most copyright legislation, the database right law was followed up with some research commissioned by the EU in order to examine whether the premise -- that providing an additional intellectual monopoly on the database separate from its contents would stimulate extra investment by European publishers -- was in fact true. The evidence was pretty clear (pdf):

Introduced to stimulate the production of databases in Europe, the new instrument has had no proven impact on the production of databases. Data taken from the GDD (see Section 4.2.3) show that the EU database production in 2004 has fallen back to pre-Directive levels: the number of EU-based database "entries" into the GDD6 was 3095 in 2004 as compared to 3092 in 1998. In 2001, there were 4085 EU-based"entries" while in 2004 there were only 3095.

So this new monopoly turned out to be a complete flop. Worse, as the current case in Vienne shows, it is now starting to have negative effects on other initiatives. Clearly, the time has come to repeal this legislation before it starts to throttle a potentially important new area for growth in Europe.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: database rights, europe, open data

26 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 13 Feb 2013 @ 3:40am

Information is only useful if people can share it FREELY, if not is of very limited use to a very limited segment of society or no use at all creating no incentives to create new databases.

Which can hurt research and development, since most new discoveries happen before people have the money to spend and waste on licenses, not after.
[ link to this | view in chronology ]
Jeroen Hellingman (profile), 13 Feb 2013 @ 3:59am

The database right is one of the few areas where we have empirical evidence of the negative impact of this kind of regulations. The evidence is clear, based on a comparison of the market for databases in the EU and the US, the conclusion was that the market in the US (without database rights) was 7 times as large as in the EU (with such rights).

I don't have a citation ready, but might be able to look up the relevant study.
[ link to this | view in chronology ]
Anonymous Coward, 13 Feb 2013 @ 4:46am

as long as something can be copyrighted, even indirectly, and then locked up, that is what will happen. the fact that the impact on other things is irrelevant because money can be made even where there is no money to be made
[ link to this | view in chronology ]
anonymouse, 13 Feb 2013 @ 5:04am

Confused here...help !!!!
Ok i understand that the information is freely available, so anyone can spend the time and money compiling the database.
Now why would that work and that effort not give a return to the investor. Surely they have a right to control sell or rent out their database to others.
I am confused here. trying to understand I am giving an example of how I think it works, please correct me if I am wrong.

I spend 10 years and �500 000 compiling a list of every gravestone in Europe. With the relevant photo and gps coordinates of said gravestone.

I then create the ability to search said database using names and any relevant data i can link to each entry.

Once i have done all this work i create a site to enable people to search the database, hoping that the money i get from advertising helps me to recover the initial cost of doing all of this work.

Then someone comes to me and asks me for my database, i say no i am using that database for my own site to generate income from that i have paid out.

I am then taken to court because the data i am using is freely available from churches around Europe.

I then have a ruling against me and i must give my database to whoever asks for it.

AM i correct up to now? and if so how in the world can anyone think this would be reasonable.
I mean i have spent money to compile a database, it does not matter where i got that information from, i got the information and compiled a database that did not exist before i created it.

Something smells fishy here, and it's not a woman.
[ link to this | view in chronology ]
- Anonymous Coward, 13 Feb 2013 @ 5:11am
  
  Re: Confused here...help !!!!
  You almost had a point to argue, and then bam.
  wtf, you're an ass.
  [ link to this | view in chronology ]
  - anonymouse, 13 Feb 2013 @ 10:44am
    
    Re: Re: Confused here...help !!!!
    That was just for the trolls , everyone else that wants to make a comment will filter out the comment at the bottom, trolls will jump on it and not think of anything actually asked, it was a little self experiment dont worry, and dont take everything so serious.
    [ link to this | view in chronology ]
    - Anonymous Coward, 14 Feb 2013 @ 1:08pm
      
      Re: Re: Re: Confused here...help !!!!
      As a woman, I have to regard you as the troll
      [ link to this | view in chronology ]
- ldne, 13 Feb 2013 @ 5:16am
  
  Re: Confused here...help !!!!
  You really are confused. The database is being sought from a Department of the government of France , not a business, and the money spent to develop the database is public funds.
  [ link to this | view in chronology ]
- Anonymous Coward, 13 Feb 2013 @ 5:17am
  
  Re: Confused here...help !!!!
  No you are not correct, people don't complain about not being able to access your database, you can lock it up all you want, the problem arises when you get the power to say to others that they can't compile a database of their own using the same data that you did.
  
  Also since the information is all public domain you should not be able to stop others from copying data that you acquired, it doesn't matter how much you expent on it.
  [ link to this | view in chronology ]
  - anonymouse, 13 Feb 2013 @ 10:46am
    
    Re: Re: Confused here...help !!!!
    I agree 100% was unsure about whether it was the government or an organisation supported by the government.
    [ link to this | view in chronology ]
- Anonymous Coward, 13 Feb 2013 @ 5:19am
  
  Re: Confused here...help !!!!
  Because in this case you are a publicly funded department. Your initial investment came from the tax payers.
  [ link to this | view in chronology ]
  - Anonymous Coward, 13 Feb 2013 @ 8:06am
    
    Re: Re: Confused here...help !!!!
    How does the funds being public or private or for that matter the ownership being public or private matter?
    
    If the funds are private then a person (or partnership or company) get the return on the investment which in a business is called profit.
    
    If on the other hand the funds are public the return on investment goes to the government which then lowers taxes by that much giving each of the owners of the investment funds the taxpayers a return on investment. As to the reduction in taxes think of that this way. If it cast $100 to do all government functions taxes must be raised (or a deficit ran) to cover the $100 in spending. Now lets assume the return on investment is $20. Then taxes would only have to cover $80 in spending.
    
    Either way in this example both the public and private ownership of the produces the same $20 return on investment assuming both arrangements are operated with equal efficiency.
    
    So I simply do not get under these assumptions where the funds being public or private matters.
    
    I do have issues with the difference in efficiency between public and private operation of a business in that in the above example the most likely results would be that the private operation produced a $20 profit and the public operation produced a $20 loss but that again is a issue of efficiency not ownership except in that ownership determines efficiency.
    [ link to this | view in chronology ]
    - Anonymous Coward, 13 Feb 2013 @ 8:50am
      
      Re: Re: Re: Confused here...help !!!!
      Quote:
      If the funds are private then a person (or partnership or company) get the return on the investment which in a business is called profit.
      
      If the funds are private the private party doing the funding should also be capable of coming up with a business plan that does not involve the creation of a monopoly to succeed which goes contrary to free capitalism, further it should not be able to stop others from creating their own competing products which is what naturally regulates markets and stop abuse without that mechanism the market becomes inefficient.
      
      This is why is not the job of law makers to guarantee the success of anybody trying to make a buck, they take a risk and get what they can, not what they think they should.
      
      If somebody comes to the market and produces a product that costs one million and works like crap and down the road comes another guy that can do it for a penny and make it work better why should the first one be rewarded?
      [ link to this | view in chronology ]
      - anonymouse, 13 Feb 2013 @ 10:50am
        
        Re: Re: Re: Re: Confused here...help !!!!
        If the second person can gather the data and produce a better site they will gather mode income and profit. No problem with that, eventually the best business plan will be the one that is popular and making money, hopefully.
        [ link to this | view in chronology ]
    - nasch (profile), 13 Feb 2013 @ 9:00am
      
      Re: Re: Re: Confused here...help !!!!
      The only reason the government should be involved is if it's something that's in the public interest but the private sector won't provide because there's no money to be made. So in that case it doesn't make sense for the government to try to make money doing it. It should be a taxpayer funded service with the results released to benefit the public, or the government shouldn't do it at all.
      [ link to this | view in chronology ]
    - Anonymous Coward, 13 Feb 2013 @ 9:01am
      
      Re: Re: Re: Confused here...help !!!!
      Quote:
      How does the funds being public or private or for that matter the ownership being public or private matter?
      
      You are right it doesn't matter because neither should be able to create a monopoly on anything except something that cannot without any other way possibly function without such schemes that are detrimental markets and public interests.
      
      Governments don't give back money that they take, they sequester the money to use in other areas they don't lower taxes, where did you come with that notion?
      
      Private entities also should never be granted the power to exclude others which destroys one of the foundations of self regulated markets and that is competition.
      [ link to this | view in chronology ]
    - Anonymous Coward, 13 Feb 2013 @ 9:38am
      
      Re: Re: Re: Confused here...help !!!!
      If the funds come from the public to build the database, why should they pay again to access the database.
      [ link to this | view in chronology ]
Tor, 13 Feb 2013 @ 5:17am

Investment really relevant?
Isn't there case law that says that the financial investment that went into building the database is irrelevant and that only the amount of creativity that was involved in the compilation matters for determining whether it's covered by copyright in the EU?

I seem to remember Techdirt covering such a court case.
[ link to this | view in chronology ]
- Tor, 13 Feb 2013 @ 6:26am
  
  Re: Investment really relevant?
  Found the Techdirt post I was thinking of: http://www.techdirt.com/articles/20120302/12271717955/eu-court-ruling-saying-sports-schedules-may-no t-covered-copyright-pushes-back-dangerous-database-copyrights.shtml
  
  At that time the EU Court of Justice wrote:
  "The fact that the setting up of the database required, irrespective of the creation of the data which it contains, significant labour and skill on the part of its author does not justify, as such, the protection of it by copyright if that labour and that skill do not express any originality in the selection or arrangement of that data."
  
  Whether it's someone putting in significant labour or investment, it seems quite similar to me.
  [ link to this | view in chronology ]
Dinglebit the Aromatic, 13 Feb 2013 @ 5:35am

Open data wouldn't be my main concern.
Load those incriminating government files into a custom table in your Oracle/SAP/whatever system - bye bye Freedom Of Information Act worries.
[ link to this | view in chronology ]
Thomas MacCallum, 13 Feb 2013 @ 5:37am

in the meantime
I agree, there should not be a intellectual monopoly on a database structure and this should be overturned.

In the meantime; could the tables be distributed without the joins and queries ?
That would no longer be a database right ?
Re working the data would be a lot less trouble than gathering it.
[ link to this | view in chronology ]
- nasch (profile), 13 Feb 2013 @ 7:41am
  
  Re: in the meantime
  In the meantime; could the tables be distributed without the joins and queries ?
  That would no longer be a database right ?
  
  That probably requires a lawyer to answer. It depends on what the law and any applicable court cases say, rather than on what a database professional would say.
  [ link to this | view in chronology ]
- Anonymous Coward, 13 Feb 2013 @ 9:03am
  
  Re: in the meantime
  Still be a database just a NoSQL one.
  [ link to this | view in chronology ]
Ivan Dilber, 14 Feb 2013 @ 9:19am

Real questions is
If NotreFamille was given the rights to use the data, would it allow the general public to download their own database for free? I doubt. Many commercial projects plan to quickly scrap some free data, cross-reference it and make easy money out of it. Once they get the data, they usually try very hard to limit the access to it using patents and copyrights "because they invested so much in producing the data". Exactly the same line of thinking as the one they criticize EU gov. for. And remember that any "free data" out there was actually produced using tax payers money in the first place, it wasn't really free. IMHO governments should use some sort of GPL licensing for all of the content they produce, to ensure that public data will always stay public and benefit the public.
[ link to this | view in chronology ]
- nasch (profile), 14 Feb 2013 @ 9:50am
  
  Re: Real questions is
  IMHO governments should use some sort of GPL licensing for all of the content they produce, to ensure that public data will always stay public and benefit the public.
  
  Or just don't have database rights so nobody can lock up public information by putting it in a database, be it private or public entities.
  [ link to this | view in chronology ]
Shahsawar, 24 Feb 2013 @ 8:40am

XXX
XXX
[ link to this | view in chronology ]