In the European Union, legal protection of investments in the creation of databases is based on one of the most curious institutions of intellectual property law, the so-called sui generis right ...which comes into existence if the creation of a database has resulted from a substantial investment and which, to a certain extent and with certain limitations, prohibits third parties from taking actions that could unreasonably prejudice the database makerʹs legitimate interests related to such investment. Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases introduced this exclusive right with the aim to foster investments in the production of databases as advanced information storage and processing systems. This article discusses, to a limited extent, some of the fundamental aspects of legal protection based on the sui generis right, namely: legal definition of a database, conditions for the emergence and ownership of the sui generis right and content and infringement of the sui generis right. As will be demonstrated, the regulation of the sui generis right is very vague in several respects and leaves a lot of room for different interpretations. For instance, the broad definition of the term ʹdatabaseʹ could potentially allow for the protection of compilations, which are not understood as databases in common language. Furthermore, the condition for the right to become existent (substantial investment) is designed in a way that gives the courts a broad range of options to justify either existence of non-existence of the right and to take into account specific characteristics of a database at hand. A similar finding applies to the infringement test, as the existence of an infringement depends on whether or not the conduct of a third party causes detriment to the substantial investment of the rightholder. The article concludes with a short overview of certain practical aspects of the sui generis right enforcement in the context of which it also presents how diligence (and also ingenuity) of the database maker already in the phase of creation of a database can significantly affect the subsequent successfulness of proving the existence, ownership and infringement of the sui generis right.
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