In today’s information society, databases play a crucial role.
In today’s information society, databases play a crucial role.
Database rights may protect valuable collections of data, but each collection and investment requires its own assessment. For a maker, the issue is protection against unauthorised extraction; for a user, it is which data may be collected and reused. Guldemond Advocaten advises both sides through our intellectual property and technology, privacy and data practices.
A database contains independent elements arranged systematically or methodically and individually accessible. The sui generis database right additionally requires substantial investment in obtaining, verifying or presenting the contents. The investment may be qualitative or quantitative.
Distinguish the collection, the software used to manage it and the individual data. Different rights may apply to each. Sometimes selection or arrangement may be protected by copyright while the data themselves are not. See also copyright. Each form of protection must be substantiated separately.
Not all business expenditure constitutes investment in a database. In British Horseracing Board, Case C-203/02, the Court of Justice distinguished obtaining existing data from creating data. Resources devoted to creating the data themselves do not automatically count towards the sui generis database right.
The actual organisation is therefore more important than the type of business. Webshops and platforms are not categorically excluded from protection. The question is what independent investment in obtaining, verifying or presenting data can be demonstrated. Keep time records, processes, systems and costs sufficiently separate to explain the investment later.
The maker is generally the party bearing the risk of the relevant investment. In collaboration or outsourcing, investigate which party actually performs that role. The server owner or software developer is not automatically the database maker.
Protection may prohibit extraction or reuse of a qualitatively or quantitatively substantial part. Repeated and systematic extraction of small parts may also be prohibited under certain conditions. The significance of an extracted part therefore cannot always be expressed in percentages alone. The relevant statutory framework is the Dutch Database Act.
Public accessibility does not permit every form of automated extraction. Examine which rights exist, how much is extracted and for what use. Contractual terms, technical access restrictions, privacy and other legislation may also matter.
Conversely, a prohibition in website terms does not turn every use into a database-right infringement. Whether the terms apply and what they validly regulate must be examined. For personal data, privacy law requirements remain independently relevant. A commercial access arrangement is not, by itself, a GDPR legal basis for every subsequent use.
Record which data become available, how often they are updated and what quality expectations apply. Describe permitted purposes, users, sublicences, onward distribution and use for analysis or AI. Clarify whether users may retain their own enrichments and what happens to previously obtained data after termination.
A licence must fit technical access and the revenue model. For API use, limits, authentication, logging and continuity matter. Uncontrolled reuse may pose a risk to suppliers, while customers may face loss of access to business-critical information. We coordinate this through commercial contracts and SaaS and cloud contracts.
A claim must substantiate both the protected right and the alleged use. Document investment, versions, access and the extracted data. Similarities between files may provide indications, but data obtained from other sources require careful analysis.
We assess appropriate measures, such as discussions, a formal demand, interim relief proceedings or targeted evidence gathering. Limits on access and confidentiality must also be respected. An evidential measure must not become an unrestricted search of a competitor’s systems.
There is no general property right in all data. Contracts, database rights, copyright, trade secrets and privacy rules may each determine part of the permitted uses.
Not automatically. Repeated and systematic use of small parts may still be prohibited under the statutory conditions. Pattern, volume and effects must be assessed together.
Contact us for advice on protection, licences or a dispute. A description of the data, investment, access and intended use provides the starting point.
