Databases Sui Generis Right: What is a Substantial Investment? A Tentative Definition

Abstract

This article reviews the national case law and summarises the views of commentators relating to the concept of substantial investment. This the requirement for a database to be protected by the European sui generis right.

The discussion shows that the decisions rarely specify what the level of substantiality of an investment is. The reason is that in most cases, the investment is so enormous that there is no discussion as to whether the required level of substantiality is attained. However some (rare) decisions elaborate on the meaning of substantiality and provide some answers. Commentators, on the other hand, are divided on the issue whether the investment should be high or low. The article attempts to determine what the level of substantial investment is on the basis on a construction of the Directive and of its aims, with the help of arguments developed in the case law and in the literature.

Keywords: databases, sui generis right, intellectual property, Europe, investment