Blockchain and Law: An Analysis of Blockchain Technology Under the Database Directive 96/9

This work investigates whether several types of blockchains could fall under the scope of application of the database-directive (DBD).

It starts with a technical chapter which explains blockchain-technology in order to provide the reader with the necessary background information. Two key-characteristics of blockchains are highlighted: their structure and their functioning. Blockchains are distributed databases, consisting of chained, time-stamped blocks and aim to store, transparently and immutably, individually accessible information. Furthermore, it is clarified that there are several types of blockchains (public v. private & permissioned v. permissionless), utilising different kinds of consensus-mechanisms and hosting different types of nodes. In order to make everything more tangible three use-cases are presented which are used throughout the work.

The next step in the process is to check whether blockchains could fall under the scope of protection, offered by the DBD. Two types of requirements will be assessed: a common requirement (the database-definition) and the specific requirements (related to the copyright/sui generis-right).

The definition of database lays down six features. Four of them (any form; collection; arranged in a systematic and methodical way; individually accessible) do not turn out to be problematic. The remaining two (independent materials; works, data and other materials), turn out to be less straightforward and give rise to some legal issues.

For a database, in order to enjoy copyright-protection, it is required that the structure of the database reflects an original selection or arrangement of the contents. This turns out to be a difficult hurdle for the blockchains from the use cases. Only rarely, and depending on the purpose of the blockchain and the implementation at hand, blockchains will qualify for copyright protection.

The next issue which is tackled, is the set of requirements related to the sui generis-protection. This protection is subject to the fulfilment of two sub-criterions: a) an investment specifically aimed at the obtaining, verification or presentation of the contents of the database should be proven b) That investment should be substantial, qualitatively or quantitatively speaking.
With regard to the first sub-criterion, this paper tries to fixate a definition of the three relevant activities and apply that to the use cases. With regard to the second sub-criterion, it turns out that the requirement of a ‘substantial’ investment is interpreted as a de minimis-rule. The threshold is generally interpreted to be quite low which makes it rather difficult to think of a situation in the blockchain-context where the investments would not be substantial enough.
The overall conclusion of this paper is that it will be rather difficult to claim copyright-protection for blockchains, whereas sui generis-protection will certainly be available if the implementation at hand is able to provide factual proof of the relevant substantial investments.