CSPLA mission on European reform of sui generis database law

The mission entrusted in January 2021 by Olivier Japiot, President of the CSPLA, to Alexandra Bensamoun, professor at the University Paris-Saclay, and Emmanuel Gabla, general engineer of mines, member of ARCEP, with the support of Guillaume Leforestier, master of requests to the Council of State, then of David Guillarme, master of requests in extraordinary service to the Council of State, rapporteurs, aimed to evaluate the impact, especially economic, on the French actors of the specific protection, said sui generis, databases established by Directive 96/9/EC of 11 March 1996. This analysis was also intended to help inform the French authorities in the negotiations on the revision of the 1996 Directive.

In March 2022, in order to take account of the Commission’s delay in publishing the proposal for a directive, this task was extended until the end of July 2022.

After recalling the characteristics of the right sui generis, the report reviews the draft data regulations (says Data Act ") of the Commission. The main aim of this project is to facilitate access to and use of data by businesses and consumers, open it to third parties and provide for the development of interoperability standards in order to remove the main obstacles to data sharing. Only one article of this draft regulation is specifically devoted to the legal framework of databases. The Commission has therefore chosen an approach at least by providing “clarifications” to the legal framework applicable to databases. The sui generis it is presented as an obstacle to the circulation of data, which is why the draft Regulation proposes to exclude its application for databases containing data generated or obtained by products and services, This is not without raising new questions. The report notes that the choice not to revise the directive leaves the uncertainties arising from its text and from the interpretation of the Court of Justice of the European Union in its case law.

The authors, who presented their report to the members of the High Council at the plenary session on 12 July, put forward proposals for alternative drafting or for setting up new contractual and legal mechanisms, The European Parliament, in its resolution on the European Social Fund and the European Social Fund, has proposed that the European Parliament, the Council, the Commission and the Member States should take the necessary steps to ensure that the European Parliament and the Council are fully aware of the need to ensure that the European Parliament, the Council, the Commission and the European Parliament are fully involved.