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The capacity to assemble, store, and make available information in databases is ever growing. This development has accelerated in recent decades, driven by the advent and increased use of digital networks. Already at an early stage, it led to demands for legal protection of databases. In most countries databases have been protected in national legislation based on copyright principles. However, this kind of protection has been regarded as insufficient. The reason for this is that copyright protection only covers the selection or arrangement of the contents of the database. By rearranging the contents, it is possible to avoid liability for copyright infringement. To address the specific needs of producers of databases, the then European community adopted a directive in 1996 on the legal protection of databases. The Directive aims to harmonise copyright protection for databases and to introduce a new, sui generis, right for the legal protection of databases. The sui generis right protects the investments in obtaining, verifying, and presenting the contents in a database. The sui generis right has been described in the literature as one of the most complex intellectual property rights ever established. Its complexity resides in the unclear relationship between the requirements for protection and the content and scope of protection. This dissertation describes, analyses, compares and systematises the legal protection for databases as provided for in the EU Database Directive – both in relation to copyright and sui generis protection, but also in relation to the intellectual property system in general and principles and rules on unfair competition. The study also describes and analyses the Directive as implemented into Swedish law. To do this, it makes use of relevant legal sources, with particular account taken of relevant sources of EU law such as the Directive itself, adjacent directives in the field of copyright and related rights, as well as unfair competition law and the case law and legal method developed by the Court of Justice of the European Union. The study also draws on underlying theories of intellectual property protection and unfair competition law, as well as arguments based on unjust enrichment and pure economic loss. The study establishes how the sui generis right serves as a legal hybrid between traditional intellectual property rights and protection against unfair competition. The structure of the right resembles traditional intellectual property rights, with requirements for protection, provisions on exclusive rights, exceptions and limitations and a term of protection. At the same time, the content and scope of protection provide measures similar to those countering unfair competition with aspects of protection against pure economic loss. The right protects against certain activities carried out in the market rather than providing protection for a traditional object of intellectual property law. When implementing the Directive, the Swedish legislator overlooked these aspects of the sui generis right, creating legal uncertainties when interpreting and applying the national legislation. The study concludes with a look forward and suggestions for future research.

The sui generis-right in article 7.1 of the database directive provides the maker of a database, who has made a qualitatively and/or quantitative substantial investment in the obtaining, verification and/or presentation of the contents in a database, the right to prevent extraction and/or re-utilization of the whole or of a substantial part of the database contents. In order to prevent the circumvention of article 7.1, the right to prohibit tortious dispositions of the contents was sup- plemented by article 7.5, which extends the right for the maker to prevent non-substantial parts to be extracted and/or re-utilized, provided that the extraction and/or re-utilization are repeated and systematic in a way that undermines the substantial investment the maker of the database has made.  The way that the sui generis-right is framed as an investment protection, in combination with the fact that the right’s object of protection is the investment as such, is the reason that the right has come to be regarded as a protection clause against unfair competition rather than an intellectual property right. As a result, the sui generis-right is of great significance to unfair competition and competition and antitrust law in general. This applies not only to article 102 FEUF, but especially to the DMA and in relation to the prescribed data-sharing obligation in article 6.10 in the DMA.  Competition and antitrust law in general and the DMA in particular, through its rootedness in article 3 FEU, aim to maintain competitive, open and fair digital markets. This applies, to say the least, as a part of ensuring the efficiency in the EU internal market, which by enlarge is intended to benefit the consumers. In this way, it’s understood that the consumers perspective plays a fundamental role in competition policy. In relation to the DMA, this is expressed through articles 6.2 and 6.10 of the DMA, which have the function of promoting innovation and increasing the consumers’ diversity of choice, while simultaneously giving the business users better opportunities to compete with the gatekeepers and thus become more efficient.  By imposing on a gatekeeper a far-reaching data-sharing obligation under article 6.10 in the DMA, in combination with the prohibition to use the same data under article 6.2, the gatekeepers’ sui generis-right is limited in all material aspects. Thereby, these provisions impose greatly on the gatekeepers’ ability as a maker of a database to freely dispose of their own database contents and thus obtain future returns and other competitive advantages as a result of the substantial investment. This is due to the fact that the gatekeeper is subject to an obligation to share the results of the investment with the business users.  The database directive states, however, that the sui generis-right must not be afforded in such a way as to facilitate abuses of a dominant position. By this reference it’s understood that this exception was written with article 102 FEUF in mind. In light of the significant differences between article 102 FEUF and the DMA, it can be concluded that the exception does not apply to the DMA. This is particularly the case as the DMA is framed as an ex ante-regulation, whereas article 102 FEUF is an ex post-regulation.  As this paper has highlighted, it requires great forethought when imposing a compulsory data-sharing obligation such as the one in article 6.10 in the DMA. The intended function of the sui generis-right is to promote investments in data processing and storage functions. In order to even receive or make use of the effective and high-quality data the business users have a right to receive from the gatekeepers, they have to have effective and proper databases, because otherwise it's entirely pointless to even force the gatekeepers to share their data.  Thus, a proportional balance is required between the interest in protecting the data as such by maintaining ex ante incentives to invest and the interest to promote open and fair digital markets as a way to ensure the effectiveness of the internal market for the benefit of the consumers and ex post social welfare. This could be a possible explanation to the Commission’s proposal of the Data Act, specifically article 35, which stipulates that the sui generis-right shall not be applied to machine generated data. It remains, however, to see how the question of the sui generis-right’s to be or not to be will play out in the future.