Sui Generis works by lowering standards for originality – EU proves

In the EU, under the Database Directive, sui generis right was granted for the protection of databases regardless of their originality, based on substantial investment.38 The concept of sui generis in EU copyright has emerged due to the legal structure in Dutch law – ‘geschriftenbescherming’ – which provides legal protection for non-original works. It is this approach that has been taken as the basis for determining the legal protection of non-original databases in the EU. In Dutch law, this construction is applied primarily to literary works and provides protection that is essentially similar to copyright protection. Historically, this unique right appeared to protect the rights of book publishers and was enshrined in the Copyright Act of the Netherlands of 1912, in particular, in Art. 10 (1), which provides for the protection of an open list of works. Thus, the wording of the article on ‘protection of books, brochures, newspapers ... and other written works’ gave rise to a contradictory diversion of the last two words.39 At the same time, this background should not be taken as the sole scope of sui generis right for databases, but rather as a historical illustration of the development.40 For now, the Database Directive is the only legal act that provides such sui generis intellectual property protection. In 1996, WIPO presented the draft of the ‘Basic Proposal for the Substantive Provisions of the Treaty on Intellectual Property in Respect of Databases to be Considered by the Diplomatic Conference’,41 which combined the EU and the US proposals concerning sui generis right in databases, although WIPO’s draft treaty was never adopted.