Publication details
One Word, Multiple standards? Rethinking the concept of ‘Substantial’ in EU Database Directive
| Authors | |
|---|---|
| Year of publication | 2026 |
| Type | Peer-reviewed scientific article |
| Magazine / Source | Jusletter IT |
| MU Faculty or unit | |
| Citation | |
| web | |
| Doi | https://doi.org/10.38023/f6142419-5e5a-408f-98c4-3db1ff5ac6a3 |
| Keywords | Substantial Part; Database Directive; Substantial Investment; Substantial Change |
| Description | While the eligibility-criterion for the Copyright protection has been harmonized through ECJ jurisprudence, and the interpretation of the concept of ‘substantial’ within the sui-generis protection under EU Database Directive 1996 – though seemingly clarifi ed for the ‘eligibility criteria’ – remains doctrinally problematic regarding ‘scope’ and ‘renewal’ of protection. The ECJ has tied the concept `of ‘substantiality’ for determining the scope of protection to the ‚investment’ made to obtain the database right, therefore confl ating the conceptually diff erent standards of ‘eligibility’ and ‘scope’. While seemingly pragmatic, this confl ation creates conceptual and practical inconsistencies. Such reasoning risks collapsing the distinction between investment-based eligibility and content-based use, undermining the Directive’s internal coherence. A more coherent approach would be to assess ‘substantiality’ of a part by reference to its capability to aff ect the normal exploitation of the database or prejudice to the legitimate interests of the database maker (as refl ected in chapter III), while treating the ‘investment’ factor as an indicative factor. Moreover, the notion of ‘substantial change’ under Article 10(3) also warrants scholarly attention. Hence, this paper argues that the Directive‘s use of ‘substantially’ across three distinct legal contexts i.e. (i) substantial investment (eligibility), (ii) substantial part (scope/infringement), and (iii) substantial change (renewal) – requires its own interpretative criteria, rather than a unifi ed, investment-based standard |