Page 223 - A Study on the Role of UGC Platforms in Copyright Law：An Intermediary-oriented Approach

A Study on the Role of UGC Platforms in Copyright Law: Chapter 7 Platform Users’ Entitlement to UGCs: Human Use and Web Scraping
An Intermediary-oriented Approach

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parts’ have resulted in inconsistent interpretations in national courts. Therefore, in the
European Commission’s evaluation report, this provision was criticised for being redundant
87
and unnecessary and was found to create more confusion and uncertainty than it remedied.
Article 9 provides an exhaustive list of exceptions to the sui generis right, including
extracting the database for private purposes, extracting the database for the purpose of
illustration for teaching or scientific research and extracting or re-utilising the database for
88
the purpose of public security or an administrative or judicial procedure. Some exceptions
merely apply to extraction whereas others extend to re-utilisation, causing unnecessary
confusion. The exception for private purposes, which is more relevant to our daily use of
UGCs, only applies to the extraction of non-electronic databases. Electronic databases such
as UGC databases, which have become more popular in the Internet age, are still subject to
the sui generis right protection. Furthermore, exemptions under Article 9 are both optional
89
90
for member states to incorporate into their national law, and overridable by contract.
According to a 2018 survey by the European Commission, the exception clauses have rarely
been invoked and have played little role in facilitating the access and re-use of publicly
available databases. 91
In addition to the foregoing, the exception clauses in the Database Directive do not
include an exception for the re-utilisation of government-held data, which is allowed by
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Directive 2003/98/EC on the Re-Use of Public Sector Information (or PSI Directive). Some
public bodies have taken advantage of the incompatibility of these two directives to block
access to and re-utilisation of public information by claiming the sui generis right under the
93
Database Directive. Although some national courts have declared that sui generis protection
cannot override the obligation under the PSI Directive, mystery and uncertainty still abound

86 Ibid 30.
87 Ibid 30.
88 Database Directive, art 9.
89 Database Directive, art 9(a).
90 Database Directive, art 9(a), ‘Member States may stipulate that lawful users of a database which is made available to the
public in whatever manner may, without the authorization of its maker, extract or re-utilize a substantial part of its contents’;
Database Directive, art 15, ‘Any contractual provision contrary to Articles 6 (1) and 8 shall be null and void’.
91 European Commission, Evaluation of Directive 96/9/EC on the Legal Protection of Databases (n 75) 20.
92 Directive on Public Sector Information (PSI), art 1 ‘This Directive establishes a minimum set of rules governing the re-use
and the practical means of facilitating reuse of existing documents held by public sector bodies of the Member States’. Art
3 ‘Member States shall ensure that, where the re-use of documents held by public sector bodies is allowed, these documents
shall be re-usable for commercial or non-commercial purposes ... Where possible, documents shall be made available through
electronic means.’
93 Conseil d’État n° 389806 (8 February 2017) (The Conseil d’État212 revoked a decision by a French court that supported
local authorities’ claim of sui generis right to reject a website’s re-use of genealogy data, arguing that the sui generis right
cannot prevent the re-use of data under the rules of the PSI Directive213.) Compass-Datenbank GmbH v Austria (C-
138/11, EU:2012) (CJEU prohibited the Austrian government from rejecting private companies’ re-use of the data of official
companies register, despite the government’s assertion of sui generis right.)

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