RIGHTS OF DATABASE PRODUCERS
LexInter | November 20, 2008 | 0 Comments

RIGHTS OF DATABASE PRODUCERS

Article L341-1

 The producer of a database, understood as the person who takes the initiative and the risk of the corresponding investments, benefits from protection of the content of the database when the constitution, verification or presentation of it attests to ‘a substantial financial, material or human investment.
This protection is independent and is exercised without prejudice to those resulting from copyright or any other right on the database or one of its constituent elements.

Article L341-2

The following are eligible for the benefit of this title:
1 ° Database producers who are nationals of a Member State of the European Community or of a State party to the Agreement on the European Economic Area, or who have in such a State their habitual residence;
2 ° Companies or enterprises incorporated in accordance with the legislation of a Member State and having their registered office, their central administration or their main establishment within the Community or a State party to the Agreement on Space European economy; nevertheless, if such a company or enterprise has only its registered office in the territory of such a State, its activities must have a real and continuous link with the economy of one of them.
Database producers who do not meet the conditions mentioned above are admitted to the protection provided for by this title when a special agreement has been concluded with the State of which they are nationals by the Council of the European Community.

Scope of protection

Article L342-1

The database producer has the right to prohibit:

1 ° The extraction, by permanent or temporary transfer of all or a qualitatively or quantitatively substantial part of the content of a database on another medium, by any means and in any form whatsoever;

2 ° Reuse, by making available to the public all or a qualitatively or quantitatively substantial part of the content of the database, whatever its form.

These rights may be transferred or assigned or be the subject of a license.

Public lending is not an act of extraction or reuse.

Article L342-2

The producer may also prohibit the repeated and systematic extraction or reuse of qualitatively or quantitatively insubstantial parts of the content of the database when these operations manifestly exceed the conditions of normal use of the database.

Article L342-3

When a database is made available to the public by the rights holder, the latter may not prohibit:

1 ° The extraction or reuse of a non-substantial part, assessed qualitatively or quantitatively, of the content of the database, by the person who has lawful access to it;

2 ° The extraction for private purposes of a qualitatively or quantitatively substantial part of the content of a non-electronic database, subject to respect for copyright or related rights on the works or elements incorporated in the database;

3 ° The extraction and reuse of a database under the conditions defined in the first two paragraphs of 7 ° of article L. 122-5;

4 ° The extraction and reuse of a substantial part, assessed qualitatively or quantitatively, of the content of the database, subject to databases designed for educational purposes and databases produced for a digital edition of the ” written, for the exclusive purposes of illustration within the framework of teaching and research, to the exclusion of any ludic or recreational activity, since the public for which this extraction and reuse is intended consists mainly of ” pupils, students, teachers or researchers directly concerned, that the source is indicated, that the use of this extraction and reuse does not give rise to any commercial exploitation and thatit is compensated by a remuneration negotiated on a lump sum basis.

Any clause contrary to 1 ° above is void.

The exceptions listed in this article may not prejudice the normal operation of the database or cause undue prejudice to the legitimate interests of the producer of the database.

Article L342-3-1

Effective technical measures within the meaning of Article L. 331-5 which are suitable for preventing or limiting the use of a database that the producer has not authorized pursuant to Article L. 342-1 benefit from the protection provided for in Article L. 335-4-1.

Database producers who use the technical protection measures mentioned in the first paragraph, however, take the necessary measures so that their implementation does not deprive the beneficiaries of the exceptions defined in Article L. 342-3 of their actual benefit, in accordance with the conditions provided for in Articles L. 331-8 et seq.

Any dispute relating to the right to benefit from the exceptions defined in Article L. 342-3 which involves a technical measure referred to in the first paragraph of this article is submitted to the Technical Measures Regulatory Authority provided for in Article L. 331-17

.

Article L342-3-2

Information in electronic form relating to the rights regime of the producer of a database, within the meaning of Article L. 331-22, benefits from the protection provided for in Article L. 335-4-2.

.Article L342-4

The first sale of a physical copy of a database in the territory of a Member State of the European Community or of a State party to the Agreement on the European Economic Area, by the right holder or with its consent, exhausts the right to control the resale of this material copy in all member states.

However, the on-line transmission of a database does not exhaust the right of the producer to control the resale in all the Member States of a physical copy of this database or of a part of it.

Article L342-5

The rights provided for in Article L. 342-1 take effect from the completion of the production of the database. They expire fifteen years after January 1 of the calendar year following that of their completion.

When a database has been made available to the public before the expiration of the period provided for in the previous paragraph, the rights expire fifteen years after January 1 of the following calendar year. of this first provision.

However, in the event that a protected database is the subject of a substantial new investment, its protection expires fifteen years after January 1 of the calendar year following that of this new investment.

Procedures and sanctions

Article L343-1

The infringement of the rights of the database producer can be proved by any means.

To this end, any person having standing under this title is entitled to have all bailiffs, assisted by experts appointed by the applicant, proceed by order issued on request by the competent civil court, or to the detailed description , with or without taking samples, of the media or products allegedly infringing the rights of the database producer, or to the actual seizure of these media or products as well as any related document.

The court may order, for the same evidentiary purposes, the actual seizure of the materials and instruments used to produce or distribute the media or products allegedly infringing the rights of the database producer.

It may make the execution of the measures it orders conditional on the lodging by the plaintiff of guarantees intended to ensure the possible compensation of the defendant if the action brought under this Title is subsequently deemed unfounded or if the release of the seizure is pronounced.

The release of the seizure may be pronounced according to the modalities provided for in Articles L. 332-2 and L. 332-3

.Article L343-2

Anyone with standing to act in the event of an infringement of the rights of the database producer may apply for summary proceedings to the competent civil court in order to have an order, if necessary under penalty, against the alleged author of this infringement or intermediaries whose services it uses, any urgent measure intended to prevent an infringement of the rights of the database producer or to prevent the prosecution of acts allegedly infringing them. The competent civil court may also order all urgent measures on request when the circumstances require that these measures not be taken contradictory, in particular when any delay would be likely to cause irreparable damage to the applicant. Seizure in summary proceedings or on request,

The court may prohibit the prosecution of acts allegedly infringing the rights of the database producer, make it subject to the constitution of guarantees intended to ensure possible compensation for the damage suffered by the plaintiff or order the seizure or handover. a third of the products suspected of infringing the rights conferred by the title, to prevent their introduction or their circulation in the commercial circuits.

It can also grant the plaintiff a provision when the existence of his damage is not seriously questionable.

Seized in summary proceedings or on request, the court may subordinate the execution of the measures it orders to the constitution by the plaintiff of guarantees intended to ensure the possible compensation of the defendant if the action brought under this title is subsequently judged. unfounded or the measures canceled.

When the measures taken to put an end to an infringement of the rights of the database producer are ordered before the initiation of an action on the merits, the applicant must appeal, through civil or criminal proceedings, within a time limit set by regulation. . Failing this, at the request of the defendant and without the latter having to justify his request, the measures ordered are annulled, without prejudice to the damages that may be claimed.

Article L343-3

In addition to the reports of the officers or agents of the judicial police, the proof of the materiality of the offenses defined in this chapter can result from the observations of sworn agents appointed by the professional organizations of producers. These agents are approved by the Minister responsible for culture under the same conditions as those provided for the agents referred to in Article L. 331-2.

Article L343-4

Interference with the rights of the producer of a database as defined in article L. 342-1 is punishable by three years’ imprisonment and a fine of 300,000 euros.

. When the offense was committed by an organized gang, the penalties are increased to five years’ imprisonment and a fine of 500,000 euros.

Article L343-5

Individuals guilty of one of the offenses provided for in this chapter may also be ordered, at their own expense, to withdraw from the commercial circuits objects deemed to be infringing and any thing which was used or was intended to commit the offense.

The court may order the destruction at the expense of the convicted person or the return to the injured party of objects and things withdrawn from commercial circuits or confiscated, without prejudice to any damages.

It can also order, at the expense of the convicted person, the posting or dissemination of the judgment pronouncing the sentence, under the conditions and under the penalties provided for in article 131-35 of the penal code.

Article L343-6

Legal persons declared criminally responsible under the conditions provided for by article 121-2 of the penal code for the offenses provided for and punished in this chapter incur:

1 ° The fine, in accordance with the terms provided for in article 131-38 of the penal code;

2 ° The penalties mentioned in article 131-39 of the same code.

The prohibition mentioned in 2 ° of article 131-39 of the same code relates to the activity in the exercise of or on the occasion of the exercise of which the offense was committed.

The court may order the destruction at the expense of the convicted person or the return to the injured party of objects and things withdrawn from commercial circuits or confiscated, without prejudice to any damages.

Article L343-7

In the event of a repeat of the offenses defined in Article L. 343-4 or if the offender is or has been linked to the injured party by agreement, the penalties incurred are doubled.

The culprits can, moreover, be deprived for a time which will not exceed five years of the right of election and of eligibility for the commercial courts, the chambers of commerce and industry and the chambers of trades, as well as for industrial tribunal advice.

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