During the operation of every internet shop, databases are created. In particular, these may be databases of goods, including photographs and information about individual products, databases of customers, including identifying data of customers and information about their purchases made, and other databases of business contacts. The content of published databases then very frequently becomes the target of interest of competing entities in practice, which may also be a consequence of low legal awareness in this area. In this legal bulletin, we shall therefore address the issue of protection of database content in greater detail.

The legal regulation governing the protection of databases is contained in the Copyright Act (Act No. 121/2000 Coll., as amended) as the so-called sui generis right of the maker of a database. The definition of a database is contained in Section 88 of the Copyright Act: “for the purposes of this Act, a database is a collection of independent works, data or other elements, systematically or methodically arranged and individually accessible by electronic or other means, regardless of the form of their expression.” As is apparent, both a database of goods and a database of customers may be subsumed under this definition. A database need not, but may, contain elements protected by copyright (for example, photographs). Likewise, publicly accessible databases also fall within the general definition of the concept of a database pursuant to Section 88 of the Copyright Act.

The content of the sui generis right of the maker of a database is regulated by Section 90 of the Copyright Act. Paragraph 1 of this provision states that “the maker of a database has the right to extraction or to re-utilisation of the whole or a qualitatively or quantitatively substantial part of the content of the database and the right to grant to another person authorisation to exercise this right.” According to paragraph 2, extraction means “permanent or temporary transfer of the whole or a substantial part of the content of the database to another medium, by any means or in any manner.” This therefore concerns those cases where a copy of the database content (or part of the database content) is created. According to paragraph 3 of this provision, re-utilisation means “any manner of making available to the public the whole or a substantial part of the content of the database by distribution of copies, rental, on-line connection or other methods of transmission.” This therefore concerns those cases where the database content is made accessible via the internet, etc.

The limitation of the sui generis right of the maker of a database is regulated by Section 91 of the Copyright Act, which provides that “the lawful user who extracts or re-utilises qualitatively or quantitatively insubstantial parts of the content of the database or a part thereof, for any purpose, does not infringe the right of the maker of a database which has been made available to the public in any manner, provided that such user uses the database in a normal and proportionate manner, not systematically or repeatedly, and without prejudice to the legitimate interests of the maker of the database…” On the basis of this provision, it is therefore possible to use parts of published databases if this is done under the above-mentioned conditions. The boundary between a qualitatively or quantitatively insubstantial part and a qualitatively or quantitatively substantial part of a database is not and cannot be established exactly, and this question would therefore possibly be the subject of interpretation (in a specific case in dispute).

The above therefore means that copying or making accessible qualitatively or quantitatively substantial parts of a database without the consent of the maker of the database is unlawful conduct. As mentioned above, in practice this conduct occurs relatively frequently in the internet environment, particularly amongst providers of various catalogues, lists of entrepreneurs, etc. In this connection, it is appropriate to recall that infringement of the sui generis right of the maker of a database gives rise for the injured entity to the same legal claims as in the case of infringement of copyright. This means including the right to surrender of unjust enrichment in the amount of double the customary remuneration (for the grant of a licence to such a database). When valuing the “values” of specific databases (licences to a database) for the purposes of court disputes, we have in practice encountered relatively high amounts.

Josef Aujezdský

Law Office Mašek, Kočí, Aujezdský www.e-Advokacie.cz – on-line legal advice

This text was originally prepared by the law office Mašek, Kočí, Aujezdský in cooperation with the association Association for Electronic Commerce (APEK) as legal bulletin No. 3/2015 intended for members of this association.

This text was translated from Czech to English using an AI translator.