Digital Rights Network

Another item from December that has only just come on the radar is the Commission's release of its long-awaited study on the effect of the database right (see here).

Empirical evaluation consisted of simply counting the number of databases before (1998) and after (2004) the directive and comparing it with the US. This has obvious problems -- for example the merging of two database doesn't necessarily imply a reduction in the industry -- but is better than nothing and, given the data constraints, may be the best one could do.

Using this approach it was found that the introduction of this extra monopoly right had almost no effect (3092 dbs in 1998 and 3095 in 2004 with a high point of 4085 in 2001).

Offsetting this rather stark result are the loud petitions of the industry (which had been expected -- see thread on the Creative Economy conference). Quoting section 1.4 of the report 'What Evidence was Found' in full:

The economic impact of the “sui generis” right on database production is unproven. 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.

Is “sui generis” protection therefore necessary for a thriving database industry? The empirical evidence, at this stage, casts doubts on this necessity. The European publishing industry, which was consulted in a restricted online survey, however produced strong submissions arguing that “sui generis” protection was crucial to the continued success of their activities.

In addition, most respondents to the on-line survey (see Section 4.2.2) believe that the “sui generis” right has brought about legal certainty, reduced the costs associated with the protection of databases, created more business opportunities and facilitated the marketing of databases.'

The result is a stalemate with the Report hedging its bets and appears to an endorse a continuance of the status quo. At the same time more evidence and input is requested from stakeholders:

Therefore, further evidence on the usefulness of "sui generis" protection needs to be gathered. The staff working paper invites stakeholders to submit their views and comments and to provide further evidence on the economic impact of "sui generis" protection. [from the press release]

See also: Jamie Boyle's comment in the FT. Rufus Pollock's post to the drn-discuss list.