Case 4 - Public Data/Database Protection of a Public Institution

Summary

A.1. CASE

The Royal Institute of Meteorology of country X (RIM) is a 100% publicly owned and funded entity whose statutory mission is to gather, organise and interpret meteorological data. In the course of the last century, RIM has developed a comprehensive database, containing all the relevant statistics for the meteorological events that occurred during the period in its own country and across Northern Europe. Realising the immense commercial value of the information included in its database, RIM has recently decided to start licensing its use to the public for a substantial fee. The private research company CLIMATE seeks a licence for use. Referring to its sui generis database right, RIM reserves to itself the right to extract and re-utilise substantial and insubstantial parts of its database. CLIMATE objects to this contractual clause, referring to the public financing of the database and claims free and unrestricted access to RIM’s data bank.

If CLIMATE proceeds to use the data without the licence, does RIM have a claim for injunction?

A.2. EDITORIAL NOTE ON EU LAW

The case is governed by two European Directives, Directive 1996/9/EC and Directive 2003/98/EC. The first Directive created a sui generis right for producers of databases; the second contains requirements for the re-use of information held by public sector bodies.

A.3. COUNTRY REPORTS(1) BELGIUM

I. Operative Rules

CLIMATE needs to obtain a licence. If it uses the database without such a licence, then RIM has a claim for injunction. However, RIM has to be careful not to abuse its dominant position ; therefore, it cannot simply refuse licences on reasonable and non-discriminatory terms.

II. Descriptive Formants

• – Directive 96/9/EC on the Legal Protection of Databases;

• – Article 3 Directive 2003/98/EC on the Re-use of Public Sector Information amended by Directive 2013/37/EU);

• – Article 94/3 of the Belgian Commercial Practices Act (Art. VI.104 BCEL);

• – Belgian Database Protection Act of 31 August 1998 (Book XI, Title VII BCEL)

• – Article 5 Belgian Act of 7 March 2007 on the re-use of public sector information (now Art. 4 Act of 4 May 2016 on the re-use of public sector information).