EURHISFIRM Work Package 3.1 – Intellectual Property Related Issues
Progress as of 15./16. March 2019 – EURHISFIRM Meeting Wroclaw
The task of WP 3.1 is to identify relevant ownership and property rights in the context of the database project. This firstly includes an examination of potential rights persisting in the source materials which are to be used for the creation of the EURHISFIRM database. Secondly WP 3.1 will take a look at ownership rights in regard to the research outcome, i.e. mainly ownership and property rights in the final EURHISFIRM database. In terms of relevant legal areas unfair competition law might be of relevance, besides the obviously important intellectual property law. The objective of WP 3.1 is to propose policies for the handling of the identified issues to ensure compliance with the relevant legal rules.
The main challenges for WP 3.1 are the great variety of sources that might be used for the creation of the database and the fact that the project covers seven different countries and thus seven different jurisdictions. The variety of sources is challenging because a number of different intellectual property rights have to be considered. This is exacerbated by the diversity of the sources and their potential uses. Besides the copyright directives of the European Union the seven countries do not have any relevant common statutes. It is therefore challenging to rely on regulation for the identification and examination of potential issues with ownership and property rights.
To this point a preliminary flowchart for issues with intellectual property rights has been produced:
While no flowchart can provide an in-depth legal analysis, the presented preliminary chart may serve as a first look at potential policies for the processing of the source materials, i.e. of a corpus of materials. A more detailed analysis of the respective legal issues which are only indicated (if at all) in the flowchart will be provided in the final WP 3.1 report.
Furthermore a legal expertise in respect to the utilization of the “Handbuch der deutschen Aktiengesellschaften” in the German copyright context has been produced. This is of particular value since this handbook is one of the key sources for data on German stock corporations.
Apart from that relevant intellectual property rights have been preliminary identified. The most important ones are copyrights in literary works, database works and the sui generis rights of makers of databases. The subject matter of those rights are texts and the presentation of graphical illustration (literary works) and databases in the sense of the Database Directive[1]. In particular company yearbooks or stock exchange lists might be subject to a copyright or related rights protection.
In addition some national rights have been identified that also might be of relevance in the EURHISFIRM context, namely related rights in photographs and similarly manufactured products under German and copyrights in typographical arrangements under British copyright law.
The relevant act in respect to intellectual property law is the digitization of the source materials. In this process the source materials are inevitably reproduced (even if it is just for a brief moment in a computer RAM). Copyrights and related rights do however grant their holders the exclusive right to reproduce the protected subject matter. Besides the reproduction the right holders also have the exclusive right to make the protected subject matter available to the public. Thus generally a license of the right holder is necessary to process the data or to include protected subject matter in the final database.
It is key not only to identify the relevant copyrights and related rights that protect the source materials but also to take a look at whether or not some of the potential utilizations in the EURHISFIRM context fall into the scope of exceptions or limitations to copyright. If they would, a license would not be necessary. While there is barely any harmonization in this respect the new Digital Single Market Directive[2] (which is yet to be implemented in the national copyright laws) might be of interest in the context of the project, since it provides exceptions for text and data mining for scientific research.
In terms of unfair competition law the question is whether the digitization and further use of existing publications (which serve as source materials for the creation of the database) constitute an act of unfair competition vis-à-vis other publishers who already market the same or similar content. Due to basically no relevant harmonization in the field of unfair competition law on the EU level the examination of unfair competition issues is even more challenging than that of the IP related issues.
Nonetheless a solid groundwork for WP 3.1 has been established and can serve as the foundation for the final report. This report will identify and examine potential issues with ownership or property rights in depth and lay out policies to deal with them.
[1] Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal Protection of Databases, OJ L 77/20, 27.3.1996.
[2] Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on Copyright and related Rights in the digital single Market and amending Directives 96/9/EC and 2001/29/EC, OJ L 130/92, 17.5.2019.