Wednesday, 14 March 2012

Database Copyright in France

As database copyright seems to be in the air, I thought I'd take this opportunity to briefly summarize French law on the issue.

The operative provision is Section L.112-3 of the Intellectual Property Code, which deals with so-called derivative works (translations, adaptations, transformations, arrangements). Under this Section, a database is considered a species of the more general category of collections or compendia of works, data or other material.

As such, independently of the sui generis right which may attach where the required conditions are met, a copyright will subsist where there exists an intellectual creation as evidenced by the choice or layout of the material or data (in other words, where there is an original expression resulting from the choice or layout). Such copyright protection, which is independent of any copyright that may subsist in the constituent elements (i.e., the data), relates to the structure of the database.

It is interesting to note that when the provision was originally enacted, the requirement was that there be originality in the choice AND layout. It was not until 1996 that the law was changed to reflect the fact that the requisite originality could flow from the choice OR layout of the material.

In actual practice, such a right (copyright in the database) is rarely of much practical import. While the threshold for protection is not particularly high, the resultant protection is quite "thin" inasmuch as a showing of infringement requires proof that a third party has copied the structural elements of the database (the original expression in choice or layout). The sui generis right (where it exists) offers considerably more protection in this regard.

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