LIMITS OF THE SUI GENERIS PROTECTION FOR NON-ORIGINAL DATABASES: THE EUROPEAN EXPERIENCE

Abstract

This article examines the evolution of approaches to interpreting the substantial investment criterion 
as a precondition for the emergence of the sui generis database right in relation to non-original databases 
operated by user-generated content (UGC)-driven online classifieds platforms. The study addresses the doctrinal challenge of distinguishing investments related to the generation of database elements from 
autonomous investments directed at the obtaining, verification, and presentation of database contents, in light 
of Directive 96/9/EC (1996), the case law of the Court of Justice of the European Union, and recent French 
jurisprudence. Methodologically, the research relies on a critical analysis of European and French judicial 
decisions, followed by a synthesis of both substantive and evidentiary standards. The article demonstrates 
that the influence of the spin-off theory historically constrained the protection of classifieds platforms, as 
expenditures aimed at audience acquisition and ensuring a stable inflow of listings were often characterised 
as general operating costs.
Drawing on recent French rulings, the paper identifies a shift towards a functional assessment 
of investment. It argues that targeted communication budgets, comprehensive content-verification mechanisms 
(including anti-fraud and cybersecurity measures), and investments in algorithmic structuring and presentation 
may qualify as substantial investment, provided their autonomy and direct causal link to the formation and 
maintenance of a structured data asset are convincingly demonstrated. The study further establishes that 
database protectability does not automatically entail a prohibition of automated extraction or re-use. In such 
disputes, the rightholder must independently demonstrate an objective risk of economic substitution capable 
of undermining the normal exploitation of the database or the amortisation of the investment. The article 
ultimately proposes a two-stage functional model of adjudication – combining structured assessment 
of substantial investment with a separate analysis of economic substitution – and formulates practice-oriented 
evidentiary benchmarks for national courts in automated data-extraction disputes in digital markets.