The copyright portion of the directive, Chapter II, applies only to the structure or schema of a database, without prejudice to any existing protection under copyright for the database contents.(133) It seeks to harmonize the scope of copyright protection for databases throughout the European Union. It does so in two major respects: First, it sets a uniform standard of originality. Second, it establishes a uniform list of “restricted acts” (i.e., exclusive rights) and exceptions to restricted acts.
Prior to the directive, copyright protection for databases in the member states could be divided into two general groups. In the U.K., Ireland and the Netherlands, the threshold for protection was quite low. In particular, Anglo-Irish common law incorporated a “sweat of the brow” doctrine that developed from the same line of eighteenth and nineteenth century English cases that were cited in early U.S. compilation cases.(134) In the remaining European countries, however, copyright imposed a fairly high threshold of originality to qualify for protection.(135) This is in keeping with the “author’s right” approach that prevails throughout most of Continental Europe, which defines originality as an expression of the author’s individual personality.(136)
The standard established by the directive requires the database to, “by reason of the selection or arrangement of [its] contents, constitute the author’s own intellectual creation.(137) This language was incorporated verbatim from the EU’s 1991 directive on the protection of computer programs.(138) It was originally adopted to override the very high standard of originality mandated by the German Supreme Court in the “Inkasso Programm” case and other decisions.(139) At the same time, by requiring an “intellectual creation,” the database directive imposes a higher standard of originality than that required under current law in the U.K., Ireland and the Netherlands. The directive thus charts a middle course on the level of originality required. Although the directive’s standard of originality has not been tested in practice, the formulation appears to be quite similar to the criteria for protection under U.S. law, as set out in the definition of “compilation” in the Copyright Act and interpreted by the Supreme Court in Feist.