When is a database protected by copyright?

When can a database be used without the author’s consent?

The exclusive rights of the database author are not unlimited. Article 64-sexies of the Italian Copyright Act identifies certain cases in which the rightsholder’s authorisation is not required, but within very precise boundaries.

First, this applies to accessing or consulting the database solely for teaching or scientific research purposes. In these cases, use of the database is permitted if it has no commercial purpose, if the source is indicated and if it remains proportionate to the purpose pursued. This does not mean that everything is allowed: use must be limited to what is genuinely necessary and cannot result in permanent or systematic reproduction of the database.

The same provision also excludes the need for authorisation when the database is used for public security purposes or in the course of administrative or judicial proceedings. In these cases, the public interest in using the information prevails over the rightsholder’s control.

Article 64-sexies then adds a very important point: that of the lawful user. Anyone who lawfully accesses a database may carry out all the operations necessary to consult and use it in accordance with its function. In other words, the “normal” use of the database cannot be blocked by the rightsholder, not even through contractual clauses, which are null and void in these cases.

However, these limitations cannot be extended beyond measure. The law makes clear that permitted uses must not compromise the economic exploitation of the database or cause unjustified prejudice to the rightsholder.

What Article 64-quinquies actually protects: the structure, not the data

The decisive point at this stage is to avoid the most common misunderstanding. Article 64-quinquies does not protect the data in itself, nor the mere fact that it has been collected on a platform or in an archive. It protects only the database as a work, that is, when the selection or arrangement of the content reflects an original choice. In other words, what matters is not the content, but how it is organised.

This criterion has been clearly established by the Court of Justice of the European Union: protection arises when the selection or arrangement of the data constitutes an original expression of the author’s creative freedom. It is not enough to have invested time, resources or expertise in collecting the data, nor is it sufficient for the content to be relevant or complex. Copyright does not reward effort or investment, but the personal stamp expressed in the organisation of the material.

This leads to a very important practical consequence. A database may be extensive, expensive to build and strategic, yet still fall outside the protection of Article 64-quinquies if it is organised according to standard or mandatory criteria, such as chronological or alphabetical order or technical categories. In these cases, protection may instead be provided by the sui generis right of the database maker or by rights relating to the individual items of content, but not by copyright protection for the database as a work of authorship.

This leads to an operational distinction that genuinely guides choices. If the database is merely a collection, there is no copyright protection; if, on the other hand, it incorporates an original logic of selection or organisation, protection under Article 64-quinquies of the Italian Copyright Act may apply.

One final clarification helps avoid frequent errors: even when the structure is protected, the content remains independent. If a database contains photographs, texts or other materials, they continue to have their own rightsholders and their own rules. The author of the database does not acquire rights in the content, but in the creative way in which they selected and organised it.

When are catalogues, archives and cultural platforms protected?

In the cultural sector, the distinction between content, structure and investment is not theoretical: it is what determines whether or not a database is protected by copyright.

Digital projects are never merely containers: they often combine heterogeneous content, metadata, curatorial choices, search tools and narrative logic. Precisely for this reason, the point is not what they contain, but how they are built.

A “curated” digital museum catalogue, for example, may or may not be protected depending on how it is designed. If the catalogue does not merely arrange works by artist, title or date, but creates an original critical path—for example, by linking the works according to a curatorial hypothesis, an interpretative relationship or an unconventional taxonomy—then the structure of the database may enjoy copyright protection. In this case, creativity lies not in the individual works or catalogue entries, but in the intellectual design governing their selection and arrangement.

The situation may be different in the case of a digitised historical photographic archive. Even if the collection and digitisation work is complex and costly, the structure often remains technical: chronological order, place where the photograph was taken, inventory number. The value is there, but it does not lie in the creativity of the structure. Protection therefore shifts to the rights in the individual photographs and, where applicable, to the investment made to create the archive (Article 102-bis of the Italian Copyright Act).

Different again is the case of a cultural platform with original metadata and search tools—or, in a more advanced version, an exhibition platform or a digital humanities platform. Here, the key is to determine whether the structure of the metadata, correlations and query paths expresses an original intellectual choice. If the system makes it possible to interpret cultural heritage according to non-standard logics, builds unprecedented relationships between works, places, materials or chronologies, and incorporates a genuine narrative or scientific architecture, the database may take on the character of a work of authorship.

The consequence is very simple. In the cultural sector, a database is protected by copyright only when its structure reflects an original choice. If this choice is absent, protection does not disappear, but changes.