The (over)protection of information in the knowledge economy. Is the Directive 96/9/EC a faux pas?

SUMMARY: 1. Introduction. – 2. The functional drivers of the Directive 96/9/EC. Databases as creative works. –  3. To continue. Databases as “useful” creations. – 4. To continue. The sui generis right and the protection of the investment as such.- 5. The emerging flaws of the database protection at EC level. – 6. To continue. The unsatisfactory implementation of the Directive at national level. – 7. The EU response. The European Commission’s 2005 Report. – 8. The 2008 Green Paper on Copyright in the Knowledge Economy. – 9. Conclusions.
1.Introduction.In its very recent Green Paper on Copyright in the Knowledge Economy [1] the European Commission remarked the importance to foster a debate on how knowledge for research, science and education can best be disseminated in the online environment. Far from being unexpected, the indication to outline the area of public domain as separate from the ambit of appropriation reserved to the intellectual property regime has been foreseen in an earlier Single Market Report [2]. In its 2007 Report, in fact, the Commission urged the enhancement of the free movement of knowledge and innovation to the status of a “Fifth Freedom”, in addition to the four freedoms (i.e. the free movement of goods; the free movement of persons; the free movement of services; and the free movement of capital) that currently govern the EC architecture. Obviously, the demand for the introduction of a new pillar within the EC Treaty is not self-executing and further in-depth analysis on its boundaries as well as clarification on its implications is required. In any case, the announcement of the establishment of a Novel Freedom shall be able in itself to inspire and even determine a major revision of the ongoing law-making policy concerning databases that may facilitate or hinder the access to scientific information and knowledge [3]. Unfortunately, this has not been (at least entirely) the case. In the Livre Vert the Commission insists on the need to extending to original collections the regime on limitations and exceptions introduced in the main piece of European copyright legislation – Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society [4]. Such alignment is very welcome for drawing a balanced equilibrium between the relevant interests and thus for stimulating the circulation of knowledge in the digital era [5]. But: is this suggestion good enough? Does it take into sufficient account the interests of those who create and invest, as well as of those who research and innovate? That is the question! In order to assess whether the proposition contained in the Green Paper is adequate, a briefly overview of the functional drivers of the legal regime on databases is required. 2. The functional drivers of the Directive 96/9/EC. Databases as creative works. As well known, the Directive 96/9/EC [6] reflects only in parte qua the IP traditional paradigm. After qualifying the original database as an autonomously protectable [7] creation, the Directive makes  the application of the droit d’auteur conditional [8] on the originality test [9]. Then, the EU law defines the scope of copyright rules, extending it to the “collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible [10] by electronic or other means”. Even this provision is consistent with the traditional copyright protection to the extent that it links the originality standard to the selection, organization and co-ordination of the collected material [11], specifying that such activities are made through the systematic and organic arrangement as well as the accessibility to the different elements collected electronically [12]. In short, the Legislator first recognises the originality of the work as a whole [13], and as a consequence limits the scope of the ius excludendi alios to original compilations: without interfering with their contents or the rights related to them [14]. Coming to the author’s economic rights, again the Directive replicates the traditional IP architecture since it grants the author the exclusive right to reproduce, distribute and publish the original collection, making the distribution right subject to exhaustion after the first sale of a copy of the collection in the EU territory by the owner of the right or with his consent [15]. The EU law then focuses on the activities permitted to the lawful user without the consent of the owner of the right [16] as well as on the restrictions on copyright [17], limiting the fair uses of databases in the case of reproduction for private purposes of a non-electronic database; where there is use for the sole purpose of illustration for teaching or scientific research, as long as the source is indicated and to the extent justified by the non-commercial purpose to be achieved; where there is use for the purposes of public security of for the purposes of an administrative or judicial procedure [18], or for public security, and thus for a better and prompter carrying out of police investigation; where other exceptions to copyright which are traditionally authorized under national law are involved. Despite a minor discrepancy (please see infra) the regime on limitation and exceptions is fully in line with the International regulation and the Berne Convention, also in the sense that the Three-Step test applies [19] an effective means of preventing the excessive application of limitations and exceptions. 3. To continue. Databases as “useful” creations. Following the IP paradigm the Directive shares some of the functional choices adopted at EU level with regard to “useful creations” [20]. Reference is made in particular to: 1. the extension of copyright rules to useful collections, that is, to the creations that, either for the nature of the selected materials, or the (typically informative) [21] aim pursued [22], are excluded from the list of traditional intellectual works, which, on the contrary, are destined to a merely aesthetical or intellectual enjoyment; 2. the granting of the rights of economic utilization of the creative collection [23] to the employer (either individual or artificial person) of the author anytime the creation is part of the duties assigned to the employee, and however when the work is made on the employer’s instructions [24], save as otherwise agreed by the parties [25]; 3. the exclusive right granted to the maker of a database to exercise some rights, such as the translation, adaptation, different arrangement and any other change thereof [26], assuming that the maker of a database is the only person entitled to make or authorize any form of reproduction, presentation or demonstration in public of the results of the change [27], without these rights being affected by the originality of the result, by the prerogatives recognised to the author of the derived work or the duration of its protection [28]; 4. the express acknowledgement, along the lines of the Directive on software, of the minimum actions necessary for the lawful user to operate and access the contents of the database and to make a technical and normal use thereof. 4. To continue. The sui generis right and the protection of the investment as such. So far the Directive endorses the IP paradigm. However, the EU legislator goes further, introducing [29] an ad hoc form of protection [30] in defence of a new legal subject [31], the maker of the database, that is, the person or corporation, who lives or whose principal place of business is within the European Union, that takes the initiative and the risk for the creation, verification or presentation of the contents of a database, using, to the purpose, financial means and/or time, work and energy [32]. In particular, the maker of a database enjoys the exclusive right to forbid, with effect erga omnes, any extraction or reutilization [33] of the whole or of a substantial part of the contents of the collection (and, under certain conditions, also of an insubstantial part), independently of the use [34] or of the fact that such actions are performed by the lawful [35] user [36], as well as the utilizations that are an unlawful economic exploitation of its contents (that is, all the forms and modes of enjoyment of the product “that can prejudice, in terms of commercial impact, the market share of the first maker depending on the replaceability of the new product unlawfully obtained” [37] or more simply, prejudice the economic interest of the maker of the database) [38]. In order to balance the interests involved, “the maker of a database made available to the public cannot prevent the lawful user from extracting and reutilizing insubstantial parts, considered in terms of quality and quantity, of the contents of such database for whatever purpose” [39] ; besides, art. 9 of the Directive provides that “Member States may provide that the lawful user of a database made available to the public can, without the authorization of the maker thereof, extract and/or reutilize a substantial part of the contents of such database in the following cases: a) extraction for private purposes of the contents of a non-electronic database; b) extraction for teaching or scientific research, as long as the source is indicated and to the extent justified by the non-commercial purpose to be achieved; c) extraction and/or reutilization for the purposes of public security or for the purposes of an administrative or judicial procedure”. The maker of the database is granted with a 15-year time, renewable, protection. Finally, departing from the exhaustion principle, the first sale of a copy of the collection in the European Union on the part of the owner or with his/her consent, bars the control on the re-sale of the copy in the European Union, but not the exercise of the rights of the maker of the database. The latter, in fact, may always assert towards the purchaser his/her own prerogatives, as and to the extent provided for the lawful user. 5. The emerging flaws of the database protection at EC level. From the time of its adoption the Directive has been challenged for its vagueness, as it has been considered as unsuitable to constitute the basis for the future harmonisation. Luckly, the Court of Justice intervened to fill in parte qua the gaps that emerged in due time [40]. With regard to the notion of database, the Court agreed that its definition is broadened to those collections containing data not protected in themselves like the so-called “raw” information [41], the news or even simple data not assembled. However, it pointed out that: 1. as its main function is the collection of data, it is made up, in primis, of “independent elements”, i.e., of elements that have an information value; due to this, the independent elements contained in databases have to be arranged systematically or methodically and be accessible one by one [42]; 2. by adopting therefore an extensive interpretation, a collection is a database when it includes works, data or other elements that can be severed from one another «without that their contents are impaired and that requires a method of any kind whatsoever, that allows to find out each of its constitutive elements» [43]; 3. for a database to exist, finally, it is irrelevant whether such collection is original or not and that it constitutes an intellectual work, since its originality is a pre-requisite merely for copyright. With regard to the applicability of the sui generis regulation, the EC judge explained that: 1. a «substantial investment» as unfailing assumption to access the benefits of the sui generis protection, occurs when some resources exceeding a de minimis threshold under a quantitative and/or qualitative viewpoint [44] are used. «A quantitative assessment refers to any means that may be numerically quantified and a qualitative assessment refers to efforts that may not be quantified, such as an intellectual effort or a waste of energy» [45]; 2. the subject of the substantial investment, i.e. the achievement, the inspection or the introduction of a database, may be defined as follows. With specific reference to investments made for the «achievement» of a database, they refer to any «means aimed at the search for existing elements and their collection in a database [46]. The means used to create the constitutive elements of a database are not a “relevant” element to qualify an investment as substantial, as this would be contrary to the nature of the same Directive, that aims at fostering investments in the IT field [47]. The investments linked, on the contrary, to the «verification» of the contents of database concern the «means aimed at controlling the accuracy and reliability of the searched data, upon creation of such database as well as during the management of the same» [48]. Consistently, the resources aimed at verifying the exactness of data during their generation are not good for the purposes of the sui generis protection. Finally, the investments relating to the «presentation» of the data collection regard «the means which allow such database to have its function of management of information, i.e. the means to arrange its elements systematically or methodically as well as to make it possible to access each of them» [49]. Also, the Court of Justice remarked with reference to the scope of protection granted to the maker of a database [50], and that: 1. the actions reserved to the maker of a database «refer to any unauthorised operation of appropriation and disclosure to public of all the contents of a database or a substantial part of it». In order that an offence occurs, it is not necessary that the data collection is directly available, but that it is made accessible to the public by the maker of a database or with its consent. With a caveat: that to make reference to the database does not infringe the sui generis right, as it does not constitute an extraction or re-utilization of the contents of the database itself [51]; 2. the notion of substantial part, under a quantitative viewpoint, relates to the «volume of the data extracted and/or reutilised of the database and should be assessed in connection with the total contents of the database» whereas, under a qualitative viewpoint, such notion refers to the importance of the investment linked to the achievement, verification or presentation of the contents of the extraction or reutilisation, no matter whether such contents represent a substantial part (under a quantitative viewpoint) of the general contents of the protected database; 3. the prohibition of unauthorised operations of extraction and/or reutilisation extends to any actions which, for their cumulative effect, aim at recreating and/or making available to the public, without the authorisation of the maker of a database, all of its contents, or a substantial part of them, and that heavily prejudice the investment of such subject. With the above indications, the Court of Justice did not helped interpreting the sui generis regulation, but also helped to promote an actual harmonisation of the national regimes, by better explaining the scope and limits of applicability of the juridical rule at issue [52]’[53]. 6. To continue: the unsatisfactory implementation of the Directive at national level. The legal protection of databases was not event satisfactory at a national level. The implementation of the Directive actually promoted an harmonisation of the national regulations and this determined a convergence towards a common notion of originality, but it also generated some juridical uncertainty with regard to the access requirements and to the scope of the sui generis protection. In particular, the vagueness of the notion of «substantial investment» to be assessed in «quantitative and qualitative» terms has led to a wavering and non-uniform national practice. Thus, while the District Court of The Hague deemed that the achievement and update in real time of a database containing real estate information was the result of a substantial investment, that satisfied the minimum requirement necessary to access the sui generis protection (NVM against De Telegraaf of September 12, 2000), the President of the District Court of Rotterdam concluded that the collection of the newspapers’ headings merely derived from an already existing source, so that it could not be defined as a substantial investment (Algemeen Dagblad a.o. against Eureka of August 22, 2000); while the Court of Appeal of Düsseldorf declared that it had not been possible to demonstrate that substantial investments had been used for the implementation of a website containing building information (baumarkt.de of June 29, 1999), the German Supreme Court ascertained the existence of the sui generis protection in connection with the Top 10 music titles and therefore the material extraction of the database contents for the publication of a different CD collection (Hit Bilanz of July 21, 2005). At the same time, the generic nature of the words «achievement», «verification» and «presentation» of a database and in particular the slight boundary between «creation» and «achievement» of a piece of information, remarked by the Court of Justice, led to the risk that the sui generis protection may extend from the contents of a database taken as a whole to each single piece of information [54]. Some authors remarked that since the adoption of the Directive, the more the creation is considered as pure data as a whole, arranged according to common criteria, the more the subject of protection, in lack of a specific definition, will be the database contents» [55]. Still, the vagueness of the sui generis right generated some doubts about the interpretation of electronic databases. Within this framework, headings, the Internet addresses and the short summaries of an article that refer to an in-depth study have not been considered as being a substantial part to a database, and the links from the headings of an article have not been as a violation of the rights of the maker of a database (High Regional Court of Cologne, October 27, 2000; District Court of Monaco, March 1, 2000; German Federal Court of Justice, July 18, 2003, Paper Boy). Nevertheless, in many cases the systematic deviation from the maker of a database’s website homepage and from its advertising have been deemed as being a violation of the sui generis right (District Court of Berlin, October 8, 1998, Berlin Online; Landgericht Köln, December 2, 1998, Süddeutsche Zeitung; District Court of Copenhagen, July 16, 2002, Newsbooster.com). 7. The EU response. The European Commission’s 2005 Report. The request to identify and solve the inconsistencies of the Directive did not remain neglected. The European Commission, in fact, investigated the likelihood of the Directive not only to meet its objective but also, and more broadly, to maintain a balance between the rights of authors, makers and the larger public interest. On December 12, 2005 [56] the Commission, over a decade after the adoption of Directive 96/9/EC, adopted a Report on the implementation of the Directive aimed at verifying whether the regime on database had failed – at least in parte qua – its objective to stimulate the “information technology”. The premise of the Commission reasoning is straightforward. On one side, it confirmed that the harmonisation of database protection at EC level has contributed to remove differences existing among national laws that interfered with the functioning of the internal market as well as with the free circulation of goods and the provision of services. On the other side, however, the European Commission indicated that the choice to limit copyright protection only to original databases [57] and, above all, the creation of an ad hoc legal instrument to protect the interests of the maker of a database appear not to have concurred to the wished strengthening of the field’s competitiveness. Moving from that premise, the Commission explored whether the harmonisation of the originality requirement needed to qualify for copyright has not resulted, in the countries where it was traditionally very low, in excessive adaptation efforts. Moreover, it investigated whether the enhancement of collections – even consisting in raw data – to a quid iuris deserving protection has given a satisfactory answer to the interests involved, or rather, whether it has contributed to cause a disproportionate and unjustified restriction [58] of the area of public domain [59] recognized to the information as such [60]. In its conclusions the Commission made reference to some of the shortfalls of the Directive [61] and evaluated, from a iure condendo perspective, the opportunity to propose reforming measures based on the proof that after the introduction of the Directive there was no remarkable boost in the Information technology field, and that the investments for the production of databases were even lower than those preceding the adoption of the same Directive. More specifically, in the Report, not only did the Commission acknowledge the lack of effect or of the sui generis right; it also suggested a range of proposals, each of them attempting to someway reform [62] the regulations in force. The first of such proposals, that extended the criticism of the sui generis right to the entire Directive, suggests that the latter is repealed tout court. This Directive is in fact merely meant to provide the maker of a database with an ad hoc protection. After remarking the incapability of the sui generis right to protect the investments meant to implement a database, the only possible choice for the EU legislator is not only to repeal such provision (that turned out to be ineffective if compared to the aims pursued) but also the same Directive. The last proposal is to maintain the Directive telle quelle. In fact, though it missed its target, it did not cause any damages nor prejudiced the interests of the subjects involved at any level in the implementation or utilisation of a database. Vice versa, according to the above mentioned proposal, any intervention on regulations would imply excessive costs and administrative charges and at all events would not be suitable to ensure the effectiveness of the sui generis right. The other two proposals are on an intermediate position. One of them aims at redefining the sui generis protection in order to dispel the uncertainty which it gave rise to. It wants to underline the juridical solidity on which the sui generis right is based, and to entrust the EU legislator with the task to strengthen its effectiveness. The other, on the contrary, puts forward the cancellation of the Directive, but only with regard to the part relating to the sui generis protection and not to the part concerning copyright protection, since at least the latter turned out to be effective. The basic idea underpinning such proposal is that the condition reserved to the sui generis right must not be extended to the Directive as a whole, that, as regards the notion of harmonisation of copyright, has full right of survival. Now, after acknowledging the need to further ascertain the Directive’s inadequacy with regard to its aims, we must find out the most suitable remedy, among those suggested by the Commission, to give a new boost to the IT field. In principle, the proposal to repeal the Directive tout court appears as unacceptable, since it considers the ineffectiveness of the sui generis right as the cause of other unrelated situations. No matter what the destiny of non-creative databases is, it cannot involve also that of creative databases, that as such, are intellectual work. The rise in the level of originality to access the benefits of copyright seems not to have created any trouble, but rather created the basis for an actual harmonisation of the matter. Under this viewpoint, the Directive’s repeal would mean giving up the creation of a uniform originality standard for the purpose of the copyright protection and maintaining a fragmentation of regulations. Nor is convincing the proposal to maintain the Directive as such, since its acceptance on the one hand would exacerbate the litigation on the matter, by increasing the unpredictability of the legal actions brought in the various Member States, and on the other hand would show the great uncertainty caused by this rule. Despite the fact that the proposal to redefine the sui generis right does not seem to explain the reasons for the «failure» of the regime, it has to be welcome because it aimed at recouping the effectiveness of the regime. In particular, the proposal urges the need for an ad hoc protection in order to protect the economic value [63] of a database, and it identifies specific remedies for some critical points of the sui generis right. Within this framework, the effectiveness of such regime may be pursued only thanks to a well-targeted review of the same. Should the EU legislator ascertain the ineffectiveness of the sui generis right and the lack of correspondence between its objectives and the results achieved, might give up such protection of the investment in itself [64], whose benefits are, for the time being, unproven [65]. A caveat is however required. The implementation of the option consisting in the invalidation of the Directive altogether or the withdrawal of the sui generis right is straightforward in line of principle but excessively complicated to make it happen in practice [66]. 8.The 2008 Green Paper on Copyright in the Knowledge Economy. A missed chance. Where the unfeasibility of the most radical solution (consisting in the invalidation of the Directive) might explain why no further official step has been taken at EC level from the adoption of the Report, the inconsistencies of the Directive that the Commission brought to light in 2005 explicate the reason why the debate on the multiple layers of protection covering the collection of data is still very vigorous. As a result of the ongoing discussion, in the 2008 Green Paper on Copyright in the Knowledge Economy the European Commission identifies some of the flaws of the database protection, recommending the correlation between the limitations and exceptions regulating the copyright law and those governing the legal protection of original databases [67]. More specifically, the Commission noted that where Article 6(2) of the Directive provides for exceptions for teaching or scientific research, and private use reproductions, the EU regime on database has no exception for disabled people. Such inconsistency should be removed. Otherwise the exception for people with a disability in Article 5(3)(b) of Directive 2001/29 could be undermined by invoking database protection on the basis that a particular literary work is simultaneously protected as a database (i.e. an encyclopaedia). The above mentioned proposal is very welcome, but it seems somehow inadequate. In the Livre Vert, in fact, the Commission missed, inter alia, the chance to: i) identify the existing vulnera of the regime on exceptions and limitations (i.e. the non-preemptory and non-compulsory nature of those limitations and exceptions that are crucial for research, its exposure to contractual overrides and technological fences) [68]; ii) suggest the introduction of possible measures aimed at stimulating innovation and dissemination in the context of the knowledge economy (i.e. the fair use regime shall be broadened where access to the copyrighted material is required for scientific and research reasons; the notion of commercial purpose shall be reviewed accordingly; the regime on limitations and exceptions shall gain the status of general regulation and their scope and ambit of application shall be expanded taking into consideration the evolution of the technological environment); iii) revisit the proposition according to which the Three-Step test is the “benchmark for all copyright limitations” [69]. Coming to the sui generis right, it is a fact that the proposal endorsed in 2005 by the Commission to repeal the sui generis right [70] and contrast a hyper-protectionist trend in intellectual property has been fully reconsidered [71]. The most recent developments, in fact, do not support a restrictive approach in the interpretation of the scope of the new right on the investments; vice versa, the prevailing line of reasoning is in the sense of sustaining a wide interpretation of its ambit and scope of application (please note that in recent decisions [72], the Court of Justice has suggested that the act of extraction [73] encompasses any unauthorised act of appropriation of the whole or a part of the contents of a database, the nature and form of the process used being irrelevant and “immaterial” [74]), in order to ensure a strong protection over the investments underlying the creation of a database. To mitigate the risk of an overprotective outcome, though, the Court of Justice has remarked that the protection by the sui generis right does not cover the consultation of a database: where the proprietor of a database makes the contents of that database accessible to third parties, even if he does so on a paid basis, his sui generis right does not allow him to prevent such third parties from consulting that database for information purposes [75]. Moreover, the Court of Justice has clarified that the Community legislation is sensitive to the concern that protection by the sui generis right must not be afforded in such a way as to facilitate abuses of a dominant position. Therefore, national judges are warned not to interpret it in a way that may affect competition, providing the maker of a sole basis database with a right that will be abusively exercised [76]. Also with reference to the sui generis right, in the Green Paper the Commission missed a valuable chance. Here in fact the Commission could have explored – but it did not – whether to extend to non-original compilations the regime of exceptions and limitations applied in the copyright regime [77]. Besides, It could have queried to propose the incorporation of measures aimed – inter alia – at a) avoiding the creation of a possible right in a single element; b) preventing that the same protection applies to databases created privately and made by the state of financed by it; c) cancelling the unjustifiable limitation of the private extraction exception to non-electronic database; d) terminating the unjustifiable limitation of the teaching and research exception to the act of extraction, connected to the illustration purposes for both teaching and research [78]. Last but not least, the Commission could have debated whether to suggest the introduction of an exception for the purpose of criticism or review as well as an exception in the public interests; also, it could have discussed the opportunity to introduce a mechanism of compulsory licences [79] in case of sole source databases as it was in an initial draft of the Directive. 9. Conclusions. Coming to my conclusions, the indication contained in the Green Paper on Copyright in the Knowledge Economy to promote the “free movement of knowledge and innovation” [80] in the digital economy seems likely to influence the legal protection on compilations, fuelling a debate on how to rethink the protection on collections from its fundamentals. However, such noble proposition has not yet come through. The Commission in fact either endorses a de minimis understanding of the process of re-designing the shape and strength of the relevant regime (i.e. the droit d’auteur) or omits to question some of its over-protectionist features all together (i.e. the sui generis right). One cannot doubt that there is a request for an intervention aimed at removing the contradictions of the Directive, but such demand is urged only vis-à-vis the ambit of application of the regime on limitations and exceptions. In other word, the Commission confines the call for reform in the context of the protection of original databases to the reconciliation of the treatment of limitations and exceptions provided therein with the general copyright paradigm. It seems likely therefore that, apart from the announced request for alignment, at EC level the assumption underlying the Green Paper that “a high level of copyright protection is crucial to intellectual creations” [81] will be confirmed and no other adjustments will be inserted to the relevant regime [82]. Such scenario is not desirable. The announced establishment of the “Fifth Freedom” shall not go unheeded but inspire an effective reconsideration of the law making policy concerning the creation and dissemination of information and knowledge. As a result, a revision of the Directive 96/9/CE cannot be postponed any further both on the very specific copyright and the sui generis right profiles of the protection granted to compilations [83]. A good starting point seems the following: to renounce the “one-size-fits-all model” and reshaping the functional drivers of the database protection in order to take into account not only the interests of those who create and invest, but also of those who research and innovate. A prima facie response in this line shall consist in expanding and reinforcing the ambit and scope of the limitation/exception regime especially when access to the “material” contained in a database is crucial for research and scientific reasons. Reference [1] European Commission, Green Paper on Copyright in the Digital Economy, COM (2008) 466/3, available at http://ec.europa.eu/internal_market/copyright/docs/copyright-infso/greenpaper_en.pdf. For a preliminary comment, M. Fabiani, Il diritto di autore tra  informazione e conoscenza, Paper presented at the Workshop on “La sfida della proprietà intellettuale nell’era digitale. Accesso alle informazioni vs controllo della conoscenza”, 12 May 2009, Università Europea di Roma. For a critical overview with regard to the US perspective, C. Hesse, E. Ostrom, Introduzione. Panoramica sui beni comuni della conoscenza, in conoscenza come bene comune, C. Hesse, E. Ostrom Eds.,2009, 3. [2] European Commission, A single market for 21st century Europe, COM 2007 724 final, 20 November 2007, available at http://eur-lex.europa.eu/LexUriServ/site/en/com/2007/com20070724 en01.pdf. [3] See Max Planck Institute for Intellectual Property, Competition and Tax Law, European Commission – Green Paper: Copyright in the Knowledge Economy – Comments by the Max Planck Institute for Intellectual Property, Competition and Tax Law, Max Planck Institute for Intellectual Property, Competition & Tax Law, Research Paper Series No. 08-05, 3 December 2008, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1317730, where the Authors note that: “although a Fifth Freedom would probably only apply to actual information or knowledge, and not to copyrighted works as such, the impacts on EC copyright policies would be considerable. Scientific information and knowledge is by and large embedded in scholarly works and databases. Scholarly works are subject to copyright; data-bases are protected by either copyright or sui generis right protection. In short, copyright law is an essential part of the infrastructure of the flow of scientific information. Therefore, to acknowledge the free movement of knowledge and innovation as a new paradigm for EC policy making in the area of copyright law is definitely the correct approach”. The need to “develop a more reasonable and nuanced approach to adapt copyright law to technological development” has been nicely identified by R. Hilty, Five Lessons About Copyright In The Information Society: Reaction Of The Scientific Community To Over-Protection And What Policy Makers Should Learn, in Journal of the Copyright Society of the U.S.A., 2006, 103. The need to foster a cooperative approach in order to enhance the creation and access to knowledge has been investigated inter alia by P. Levine, L’azione collettiva, l’impegno civile e i beni comuni della conoscenza, in La conoscenza come bene comune, C. Hesse, E. Ostrom Eds., 2009, 264; for a critical overview, see also V. Falce, Profili pro-concorrenziali dell’istituto brevettuale, 2008, Cap. 3. [4] Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, OJ L 167, 22.6.2001, 10-19; European Commission, Report on the application of the Directive on the harmonisation of certain aspects of copyright and related rights in the information society (2001/29/EC), available at http://ec.europa.eu/internal_market/copyright/copyright-infso/copyright-infso_en.htm. [5] R. Hilty, Copyright Law And The Information Society – Neglected Adjustments And Their Consequences, in IIC, 2007, 135, where the Author points out that “In a number of circumstances, in particular those where “information” as a highly vulnerable good is involved, great care is required. If the legal protection of certain parties is excessive, other parties affected by copyright law will try to circumvent it. Under such conditions, copyright law fails to fulfil its function of ensuring an adequate balance of interests; unpredictable rules of force prevail over constitutional copyright rules”. [6] Directive 96/9/EC of the European Parliament and the Council of March 11, 1996, concerning the juridical protection of databases, in G.U.C.E. no. L 77 of March 27, 1996, 20. [7] In this respect, see M. Fabiani, Banche dati e multimedialità, in Riv. dir. aut., 1, 1999, 3. [8] In this respect, see P. Auteri, Attuazione della Direttiva 96/9/CE relativa alla tutela giuridica della banche dati, in Nuove leggi civ. comm., 2003, 1178. [9] Such choice is in line with the traditional standards governing intellectual property in European civil-law countries, among which Italy. In Italy, for instance, already before the adoption of the Directive, databases were protected as collection of works (or parts of works) that, for the originality of the choice or arrangement of the material, were classified as collective works (in the sub-category of compilation works) (See L.C. Ubertazzi, Raccolte elettroniche di dati e diritto d’autore: prime riflessioni, in G. ALPA, La tutela giuridica del software, 1984; P. Greco, P. Vercellone, I diritti sulle opere dell’ingegno, in Tratt dir. civ. it., 1974, 57; V.M. De Sanctis, Il carattere creativo delle opere dell’ingegno, 1971. For an in-depth analysis, see also P. Frassi, Creazioni utili e diritto d’autore, 1997, 182). In common-law countries, where the level of creativity required to qualify for copyright was traditionally very low, the higher standards of originality imposed by the Directive caused the exclusion of “mere compilations” from the list of the works that can enjoy the benefits of the ius excludendi alios (E. Giannantonio, Manuale di diritto dell’informatica, 1994, 143). The US Supreme Court had already followed this path in its leading case of March 27, 1991, Feist Publications Inc v. Rural Telephone Service Company Inc. (published also in Foro it., 1992, IV, c. 37 with a comment from A. Zoppini, Diritto di autore sulle compilazioni nella recente giurisprudenza della Suprema Corte americana). [10] For a close examination, reference should be made to C.M. Mayr, Banche dati e musei, in AIDA, 1997, 117. [11] See Giov. Guglielmetti,  La tutela delle banche dati con diritto sui generis nella direttiva 96/9/CE, cit., 44; P Frassi, Creazioni utili e diritto d’autore, cit., 171; V. Di Cataldo, Banche-dati e diritto sui generis: la fattispecie costitutiva, in AIDA, 1997, 21. [12] The Directive specifies that for the purposes of copyright protection, no evaluation should be made “of the quality and aesthetic value of the database” (Recital n. 16). For a close examination of the choice of EU law, see P. Spada, Banche dati e diritto d’autore, in AIDA, 1997, 9, as well as G. Schricker, Farewell to the level of Creativity in German Copyright Law?, in IIC, 1995, 41; C.M. Mayr, Banche dati e musei, cit., 125. [13] In this respect, see M.C. Cardarelli, Il diritto sui generis: la durata, in AIDA, 1997, 64; R. e R. Imperiali, La tutela giuridica delle banche dati, in Diritto comunitario e degli scambi internazionali, 1996, 381; R. De Nicola, Copyright in collections of facts: a theory for the protection of non-fiction literary works, in Col. L. Rev., 81, 1981, 516. [14] In this respect, see L. Chimienti, La direttiva sulle banche dati, Riv. Dir. Ind, 1996, 124; C. Galli, Banche dati e giornali, in AIDA, 1997, 29. [15] For an overview of the economic rights granted to the author of a creative work, see now A. Musso, Proprietà intellettuale, in Enciclopedia del Diritto, Annali II, Tomo II, 2009, 890; A. Musso, Diritto di autore sulle opere dell’ingegno letterarie e artistiche, in Commentario del Codice civile Scialoja-Branca, Libro quinto art. 2575-2583, 2008, 181. [16] The lawful user is allowed to carry out all the activities that would fall under the exclusive right of the owner of the rights, provided that they are for guaranteeing the access or reference to the database or its normal utilization according to the Three-Step test. [17] On the ratio of the limitations regime, A. Musso, Diritto di autore sulle opere dell’ingegno letterarie e artistiche, in Commentario del Codice civile Scialoja-Branca, Libro quinto art. 2575-2583, 2008, 157. [18] In this respect, see R. Valenti, Art. 4, Attuazione della Direttiva 96/9/CE relativa alla tutela giuridica delle banche dati, in Nuove leggi civ. comm., 2003, 1215; M. Fabiani, Banche dati e multimedialità, in Riv. dir. aut., 1, 1999, 5. [19] The test has been analysed and criticised among the others by V. K.J. KOELMAN, Fixing the Three-Step Test, in E.I.P.R., 2006, 407; T. DREIER – P.B. HUGENHOLTZ, Agreement on Trade-related Aspects of Intellectual Property Rights, in T. DREIER – P.B. HUGENHOLTZ, Concise European Copyright Law, 2006, 195 ; C. GEIGER, From Berne to national Law, via the copyright directive: the dangerous mutations of the Three-Step Test, in E.I.P.R. 2007, 486; D.J. GERVAIS, Towards a new core international copyright norm: the reverse Three-Step Test, in Marquette Intl. Property L.R., 2005, 35; F. SENFTLEBEN, Copyright limitations and the Three-Step Test. An analysis of the Three- Step Test in International and EC Copyright Law, 2004; M. FICSOR, How much of what? The Three-Step Test and its application in two recent WTO dispute settlement cases, in RIDA, 2002, 111; J.C. GINSBURG, Towards supranational Copyright law? The WTO panel decision and the “Three-Step Test” for a copyright exception, in RIDA, 2001, 187. See also Max Planck Institute for Intellectual Property, Competition and Tax Law, Declaration a balanced interpretation of the “three-step test” in copyright law, 2008, available at http://www.ip.mpg.de/shared/data/pdf/declaration_three_steps.pdf. [20] For an analysis of the evolution of the IP paradigm from a “proprietary” perspective to an “enterpreneural” function, see also R. Romano, imprinting proprietario nella tutela della creazione intellettuale e concorrenza. [21] The informative function of databases is the minimum requirement, considering that, in its absence, the collection would lose any market interest, G. Fauceglia, Le banche dati relative a brevetti, in AIDA, 1997,  138. [22] In this respect, see P. Spada, Banche dati e diritto d’autore, cit., 7. [23] According to legal theory “the employer shall not be the original owner of the right, but rather the first derived owner and may exercise in primis the right to publish the collection, as the author, by publishing his/her creation, may exercise the distribution right”, L. Chimienti, Banche di dati e diritto d’autore, 1999, 25. See also M. Fabiani, Banche dati e multimedialità, in Riv. dir. aut., 1999, 6. [24] Recital no. 29 of the Directive admits explicitly that Member States may establish that “if a database is created by an employee, in the performance of his/her duties or at his/her employer’s request, the employer can benefit from the exclusive exercise of all patrimonial rights on the database so created, save as otherwise stated in the agreement”. In this regard, legal commentators have pointed out that the indication in the recital of a solution that, falling under the freedom or discretionary power of national laws did not need to be authorised, can be considered as an expression of the favour of EU law for such solution. In this respect, see P. Auteri, Art. 3, leg. decree May 6, 1999, no. 169, Attuazione della Direttiva 96/9/CE relativa alla tutela giuridica delle banche dati, in Nuove leggi civ. comm., 2003, 1201, as well as P. Auteri, Diritto d’autore, in AA.VV. Diritto Industriale. Proprietà intellettuale e concorrenza, 2001, 530. [25] See P. Greco, P. Vercellone, I diritti sulle opere dell’ingegno, 1974, 254. More recently, O. Carosone, L’opera dell’ingegno creata nel rapporto di lavoro autonomo e subordinato, 1999. [26] These activities do not concern the contents of the collection as such, but to the extent their different arrangement is able to affect the originality of the database. Cfr. V. Meli, Le utilizzazioni libere nella direttiva 96/9/CE sulla protezione giuridica delle banche dati, in AIDA, 1997, 94. [27] For a wide reconstruction, reference should be made to R. Valenti, Art. 4, leg. decree May 6, 1999, no. 169, Attuazione della direttiva 96/9/CE relativa alla tutela giuridica delle banche dati, cit.,1216. [28] The departure from traditional copyright principles is criticised by V. Falce, Diritto d’autore e Innovazione derivata nelle Information Technologies, in Riv. Dir. Ind., 2003, I,  74, passim. [29] Scholars placed the creation of the sui generis right within the so-called horizontal expansion of the intellectual property (for an overview, see G. Floridia, Le creazioni protette, in AA.VV., Diritto Industriale. Proprietà intellettuale e concorrenza, 2005, 192). For an analysis of the evolution of the US system, reference should be made to J.H. Reichman, P. Samuelson, Intellectual Property Rights in Data?, in Vand. L. Rev., 1997, 51; J. H. Reichman, Database Protection at the Crossroads: Recent Developments and their Impact on Science and Technology, in Berkley Tech. L. J., 1999, 793; see also M. Granieri, Evoluzione del diritti statunitense sulla tutela brevettuale e profili di contrasto con le dinamiche concorrenziali, in Giur. Comm., 2003, 1, 29. [30] Contra M. Bertani, Impresa culturale e diritti esclusivi, 2000, according to which the sui generis right can be referred to the category of related rights. Also M. Ricolfi, Diritto d’autore e abuso di posizione dominante, in Riv. Dir. Ind., 2001, 149, believes that the related rights like that relating to databases are “closer to the rights on useful intellectual works than the latter are to the classical intellectual works”. On the qualification of the new regime as a related right, see inter alia M.S. Spolidoro, Il contenuto del diritto connesso sulle banche dati, in AIDA, 1997, 46; G. Ghidini, Profili evolutivi del diritto industriale, 2 ed, 2008, 200; C. Garrigues, Databases: A Subject-matter for copyright or for a new Neighbouring Rights Regime?, in EIPR, l997, 3; M. Lehmann, The European Database Directive and its implementation into German law, in IIC, 1998, , 776; E. Derclaye, The legal protection of databases. A comparative analysis, 2008, 53). [31] See M.S. Spolidoro, Il contenuto del diritto connesso sulle banche dati, in AIDA, 1997, 54. [32] See Giov. Guglielmetti, La tutela delle banche dati con diritto sui generis nella direttiva 96/9/CE, cit.; F. Macario, L’attuazione della direttiva 96/9/CE in materia di banche dati, in Contratto e Impresa Europa, 1998,  1106; M. Lehmann, La nuova direttiva CE sulle banche dati, in Riv. Dir. Ind.,1997, I, 113; P. Dal Poggetto, La protezione giuridica delle banche dati mediante il diritto d’autore ed il diritto sui generis, in Informatica e diritto, 1997, 159. [33] Extraction means the permanent or temporary transfer of all or of a substantial part of the contents of a database on another medium; reutilization means any form of offer to the public of the whole or of a substantial part of the contents of a database by means of distribution of copies, hiring, transmission made by any means and in any form. Placing a limited number of persons, linked by mutual personal bonds is not a reutilization. [34] On the relevance of parasitical acts, see A Montanari, La riproduzione mediante introduzione nella memoria degli elaboratori elettronici, in Dir. informazione e informatica, 1986, , 809. [35] The identification of the lawful user is difficult in respect not only of the direct contractor of the right’s owner but also in respect of third parties, who have gained access to the database after further steps. See D. Sarti, Diritti esclusivi e circolazione dei beni, 1996; V. Vanovermeire, The concept of the lawful user in the database directive, in Review of IP and Competition Law, 2001, 71. [36] The extraction o reutilization of insubstantial parts, evaluated in terms of quality and quantity, of the contents of a database, performed by the lawful user to any purpose, are not subject to the authorization of the maker of a database available to the public for any reason. [37] See F. Rossetti, Le banche dati – una nuova creazione intellettuale, in Il dir. ind., 1997, 264. [38] Like all the acts suitable to bar or just limit the enjoyment and the consequent opportunities of economic exploitation of the data base. In this regard, see L. Chimienti, Banche di dati e diritto d’autore, 1999, 61. [39] See D. Nimmer, Brains and other Paraphernalia of the Digital Age, in Riv. Dir. Ind., 1997, I, 70; D. Sarti, Diritti esclusivi e circolazione, cit., 402. [40] See the following Judgements of the Court of Justice: British Horseracing Board Ltd and Others v. William Hill Organization Ltd, case C-203/02; Fixtures Marketing Ltd v.Organismos Prognostikon Agnon Podosfairou, case C-444/02; Fixtures Marketing Ltd v. Svenska Spel AB, case C-338/02; Fixtures Marketing Ltd v. Oy Veikkaus Ab, case C-46/02., available at the Internet website www.curia.eu.int. For a preliminary overview, V. Viti, Diritto sui generis al guado, in Diritto dell’Internet, 2005, 456; C. Manavello, Prima decisione della Corte di Giustizia sulla protezione delle banche di dati, in Il Diritto Industriale, 2005, 420; C. Lucioni, L’oggetto e l’estensione del diritto sui generis a favore del costitutore di banche dati compilative nell’interpretazione della Corte di Giustizia, in Diritto pubblico comparato ed europeo, 2005, 97; T. Aplin, The ECJ elucidates the database right, in I.P.Q., 2004, , 204. [41] In this respect, see Giov. Guglielmetti, La tutela delle banche dati con diritto sui generis nella Direttiva 96/9/CE, in Contratto e Impresa/Europa, 1997, 44. [42] See Court of Justice, Judgement of November 9, 2004, Fixtures Marketing Ltd. and Organismos Prognostikon Agonon Podosfairon, available at the Internet website www.curia.eu.int. § 29. For a criticism, reference should be made to E. Derclaye, What is a database? A critical analysis of the definition of a database in the European Directive and Suggestions for an international definition, in J.W.I.P., 2002, 1005. [43] For a criticism, reference should be made to E. Derclaye, What is a database? A critical analysis of the definition of a database in the European Directive and Suggestions for an international definition, in J.W.I.P., 2002, 1005. [44] In this respect, see also E. Derclaye, Databases sui generis right: what is a substantial investment? A tentative definition, in International Review of Intellectual Property and Copyright Law, 2005, 2. On the approach followed by the Court of Justice vis-à-vis the opinion of Advocate General Sticx-Hackl, T. APLIN, The EU Database Rights: Recent Developments, in I.P.Q., 2005, I, 52. [45] See Court of Justice, Judgement of November 9, 2004, Fixtures Marketing Ltd. and Oy Veikkaus AB, available at the Internet website www.curia.eu.int. § 38. [46] Contrary to the statements of the Advocate General, the Court deems that «the investment must concern the activity of collection and further organisation of data in the database, and not the creation of single data. For the acknowledgement of the sui generis right of the maker of a database, the investment made by the same has necessarily to regard the collection of the already existing materials (“existing data”). The aim of the Directive is in fact to foster and promote investments “recording” and “management” systems of the data which contribute to the development of the I.T. market. The aim of the sui generis right is to ensure a protection against the appropriation of the results of the financial and professional investment made by the subject that “obtained and collected the contents” of a database», see C. Manavello, Prima decisione della Corte di Giustizia sulla protezione delle banche di dati, in Il Diritto Industriale, 2005, 422. [47] In this respect, see P. Hugenholtz, Program Schedules, Event Data and Telephone Subscriber Listings under the Database Directive – The “Spin-Off” doctrine in the Netherlands and elsewhere in Europe, Paper presented to the Conference on the International IP Law & Policy, Fordham University School of Law, New York, April 14-25, 2008, available at http://www.ivir.nl/publications/hugenholtz/spinofffordham.html; D.J.G. Visser, The database right and the spin-off theory, in Ecommerce Law. National and transnational topics and perspectives, 2003, 105-110; E. Derclaye, Database sui generis right: should we adopt the spin-off theory?, in EIPR, 2004, 402-413. [48] See Court of Justice, Judgement of November 9, 2004, Fixtures Marketing Ltd. and Svenska Spel AB, available at the Internet website www.curia.eu.int. § 27. [49] See Court of Justice, Judgement of November 9, 2004, Fixtures Marketing Ltd. and Oy Veikkaus AB, available at the Internet website www.curia.eu.int. § 37 and following. Prof. J. REICHMAN has defined as “elusive” the distinction between substantial investment for purposes of collecting data (presumably ineligible), and expenditures for purposes of developing and maintaining collections of data as such, which presumably qualify for protection (Speech given at the Workshop “La sfida della proprietà intellettuale nell’era digitale. Accesso alle informazioni vs controllo della conoscenza”, Università Europea di Roma, cit.). [50] See Court of Justice, Judgement of November 9, 2004, The British Horseracing Board Ltd. c.a. and William Hill Organisation Ltd., available at the Internet website www.curia.eu.int. [51] In this respect, see C. MANAVELLO, Prima decisione della Corte di Giustizia sulla protezione delle banche di dati, op. cit., 422. [52] To a large extent, the position of the Court of Justice had been anticipated in the case law. In this respect, see W. CORNISH, European Community directive on database protection, in Columbia VLA J., 1996, 4; S. BEUTLER, The protection of multimedia products through the European Community’s Directive on the legal protection of databases, in En.t L. R., 1996, 321; M. LEHMANN, The European Directive and German law, in IIC, 1998, , 776; E. DERCLAYE, What is a database? A critical analysis of the definition of a database in the European Database Directive and suggestìons for an international definition, in JWIP, 2002, 981. [53] The remarks of the Court of Justice raised new doubts. On the implications arising from the distinction between achievement and creation, see also A. MCGEE, G. SCANLAN, The Database Directive – sui generis and copyright: a practicable distinction?, in The Journal of Business Law, 2005, July, 422; B. HUGENHOLTZ, M.J. DAVISON, Football fixtures, horseraces and spinoffs: the ECJ domesticates the database right, in EIPR, 2005-3, 113-118. [54] In this respect, see A. ZOPPINI, Privativa sulle informazioni e iniziative comunitarie a tutela delle banche dati, cit., 895, according to which the sui generis protection «does not want to create a dangerous monopoly over information, since the subject of protection are not the contents of the database as such, but rather the contents as the result of an investment worth repaying». [55] In this respect, see G. FAUCEGLIA, Le banche dati relative a brevetti, in AIDA, cit., 137. [56] See DG INTERNAL MARKET AND SERVICES WORKING PAPER, First evaluation of Directive 96/9/ED on the legal protection of database, December 12, 2005, available at http://ec.europa.eu/internal_ market/copyright/index_en.htm. For a critical comment, see MAX PLANCK INSTITUTE FOR INTELLECTUAL PROPERTY, COMPETITION AND TAX LAW, First Evaluation Of Directive 96/9/Ec On The Legal Protection Of Databases, in IIC, 2006, 551; V. FALCE, Ambiti di novità e di continuità della disciplina sulle banche dati rispetto al diritto d’autore, in Scenari e Prospettive del diritto d’autore, Eds. Gambino-Falce, 2009; V. FALCE, La disciplina comunitaria sulle banche dati. Un bilancio a dieci anni dall’adozione, in Riv. Dir. Ind., 2006, 227. [57] For an analysis of the origins and evolutions of the protection on creative “collections”, see R. MASTROIANNI, Diritto internazionale d’autore, 1997; L. CHIMIENTI, Banche di dati e diritto d’autore, 1999, 6. [58] In this respect, see A. ZOPPINI, Privativa sulle informazioni e iniziative comunitarie a tutela delle banche dati, in Dir. informazione e informatica 1993, 897: “EU law looks favourably at the property in information, reflected in the postulate that the one who wants to obtain the information either produces it autonomously or purchases it from those who have it”. See also P. PERLINGIERI, L’informazione come bene giuridico, in Rass dir. civ., 1990, 344-345, who, anticipating the choices of EU law, points out that “even the information, known and disclosed, can represent a substantial benefit, also at an economic level, when the presence of peculiar circumstances, due to the applicant’s needs for completeness and timeliness of the information, documentary certainty, make the reception of such information subjectively useful, within that historic and logistic context”. [59] In this respect, see B. HUGENHOLTZ, Abuse of Database Right Sole-source information banks under the EU Database Directive, Paper presented at the Antitrust, Patent and Copyright Conference, Paris, 15-16 January 2004: J. RENBOTHE, S. VON LEWINSKI, The WIPO Treaties 1996: Ready to Come into Force, in EIPR, 2002, 208. [60] It has been nicely noted that with the database protection and in particular the introduction of the sui generis right, “The European Community basically eliminated the principle, so essential to the freedom of information, of denying exclusive protection to factual data and information” (G. GHIDINI, Intellectual Property and Competition Law. The Innovation Nexus, 2006, 64). For an in-depth analysis of the evolution of the droit d’auteur, see P. FRASSI, Creazioni utili e diritto d’autore, cit., passim. With reference to the economic importance of “knowledge as a global public good”, see also J.E. STIGLITZ, Knowledge as a Global Public Good, in Global Public Goods: International Cooperation In The 21st Century, 308 (Inge Kaul et al. eds., 1999); C.S. YOO, Copyright and Public Good Economics: A Misunderstood Relation, in PA. L. REV., 2007, 635; B. M. FRISCHMANN, An Economic Theory of Infrastructure and Commons Management, in MINN. L. REV., 2005, 917. [61] In this respect, see M.J. DAVISON, The Legal Protection of Databases, 2003. [62] About this, see EUROPEAN COMMISSION, Una migliore regolamentazione per la crescita e l’occupazione nell’Unione Europea, Communication of March 16, 2005, COM (2005) 97 def., available at www.europa.eu. [63] P. AUTERI, Note Introduttive, Attuazione della Direttiva 96/9/CE relativa alla tutela giuridica delle banche dati, in Nuove leggi civ. comm., 2003, 1176. [64] «It will be therefore necessary to search in other regulations other ways to protect databases, integrating the one ensured by the copyright. Reference should be made especially to contractual arrangements, confidentiality and competition tort»: L. C. UBERTAZZI, Raccolte elettroniche di dati e diritto d’autore: prime riflessioni, op. cit., 63. For the effects of exclusive on research, see J. REICHMAN, P. UHLIR, A contractually reconstructed research commons for scientific data in a highly protectionist intellectual property environment, cit., 315. [65] The 2005 Report has been defined as “a remarkable document, not least because it is so straightforward regarding the lack of evidence that could be found to confirm the effects that were expected to ensue from harmonisation of the protection of data compilations. It is indeed a positive signal that the authors of the report were candid enough to state that the endorsement of that right is “somewhat at odds with the continued success of US publishing and database production that thrives without ‘sui generis’ type protection” (p. 25), and to conclude that “with respect to ‘non-original’ databases, the assumption that more and more layers of IP protection means more innovation and growth appears not to hold up” (p. 24)) (Cfr. THE MAX PLANCK INSTITUTE FOR INTELLECTUAL PROPERTY, COMPETITION AND TAX LAW, First Evaluation Of Directive 96/9/Ec On The Legal Protection Of Databases , in IIC, 2006, 551). In the same line of reasoning, V. FALCE, Ambiti di novità e di continuità della disciplina sulle banche dati rispetto al diritto d’autore, in Scenari e Prospettive del diritto d’autore, Eds. Gambino-Falce, 2009. [66] “Once legislation is enacted, getting rid of it will be possible only in exceptional cases – turning the clock back may be a theoretical option, but it will hardly ever materialise in practice. As is stated in the evaluation report, in spite of its weak foundation, the “attachment to the sui generis right has become a political reality” (p. 25)”. THE MAX PLANCK INSTITUTE FOR INTELLECTUAL PROPERTY, COMPETITION AND TAX LAW, First Evaluation Of Directive 96/9/Ec On The Legal Protection Of Databases , in IIC, 2006, 551. [67] On the exception and limitation regime, the 2005 Report mentions that “Certain users have pleaded for an extension in the scope of the exception for private purposes to digital databases, but rightholders (in particular, publishers) fear that such a move would lead to abuse and would increase the risks of theft and piracy. Certain members of the academic and scientific community were concerned that the exceptions to the “sui generis” right were too restrictive with regard to the access to and use of data and information for scientific and educational purposes. Claims were also made for the enlargement of the scope of certain exceptions (e.g. in support of the private use of digital databases), for the application of traditional exceptions also to the “sui generis” right (i.e. exception for fair dealing reporting of current events, in particular in the field of sports data) and for the introduction of new exceptions (i.e. for the benefit of the physically disabled). Certain lib