BREXIT: Copyright and sui generis database right

It is general knowledge that copyright can cover literary and artistic works if these creations bear the personal stamp of the author and thus meet the originality requirement. It is, however, less widely known that the subject of what can be covered by copyright is so broadly defined that it can include databases.

Note that a database can thus be protected under copyright law, but also under sui generis database law. Indeed, where copyright requires originality and the personal stamp of the author, sui generis database law requires that substantial investments have been made to obtain, verify and/or present the content of the database.

Copyright law has been harmonized on the basis of both EU legislation and non-EU legislation, while sui generis database law has only been harmonized on the basis of EU legislation. This is the reason why Brexit has a greater impact on sui generis database law than copyright law.

That said, copyrights and database rights existing on December 31st, 2020 in the EU will – rather evidently – continue to be protected in the UK after the Brexit for their remaining duration (and vice versa).

However, with regard to copyrights and sui generis database rights arising as from January 1st, 2021, the following distinction needs to be made:

–        Copyrights in the EU will be valid in the UK (and vice versa);

–        Sui generis database rights in the EU, however, will not be valid in the UK (and vice versa). EU residents and entities are excluded from sui generis database rights protection in the UK and UK residents and entities are excluded in the EU.

Hence, to protect and control third-party use of your databases in the UK that are created after 31 December 2020, you will need to implement alternative protective measures. Regarding the exercise of your copyrights in the UK, you will enjoy the same protection as is available for UK copyrights in accordance with UK law (so-called “national treatment”).

For the sake of completeness, please note that the same principles apply to Norway, Liechtenstein, and Iceland as well, as these countries are part of the European Economic Area (“EEA”).

At Gevers, we are at your disposal to advise you on the most optimal protection of your database(s) post-Brexit!

Brent De Jonghe