A European Union Directive protects the content of databases
even when they are not protected by copyright law. It does this to
protect the significant investment involved in creating a
database.
Sufficiently creative and original databases are protected by
copyright, but there are many others that are not covered by
copyright law, such as telephone directories, music charts or
football match listings.
The database right received a setback in 2004 in a case in which
the British Horseracing Board was told that it could not refuse
bookmaker William Hill access to its database of which horses and
riders were running on a particular day.
The European Court of Justice (ECJ) ruled that the BHB had not
put enough effort into the creation of its database to qualify for
protection in a ruling that was widely viewed as weakening the EU's
database right.
ECJ Advocate General Eleanor Sharpston, though, has now backed
the University of Freibug's right to protect the content of its
databases from commercial exploitation by an unrelated company.
Professor Dr Ulrich Knoop, a Professor of German at the
University, oversaw the compilation of the 1,100 most important
poems in German between 1720 and 1900. The list of 1,100 titles was
published on the internet and served as the basis for an anthology
compiled by the University. That list took two-and-a-half
years to compile and cost the University €34,900.
A company called Directmedia Publishing then published a CD-ROM
called '1000 poems everyone should have', on which 876 of the poems
are from the period 1720 to 1900 and all but 20 of those appear on
the University's list. Though it took the text of poems from other
sources, Directmedia did use the University's list to help its
selection of poems for the CD-ROM.
Knoop and the University sued Directmedia, claiming that it had
infringed Knoop's copyright as compiler of an anthology and the
University's right as a maker of a database.
The ECJ will have to decide whether or not Directmedia's use of
the information is an infringement of the University's database
rights, or whether there would have to be actual copying of data
for infringement to have occurred.
An Advocate General's opinion is only a guide for the ECJ and is
followed in around 80% of ECJ rulings.
"Academic commentators take the view that the sui
generis right enjoyed by a maker of a database does not
entitle him to prevent use of his database as a source of
information, even if by that process substantial parts of the data
are gradually taken from the database and incorporated in a
different database," said Sharpston, outlying the view that would
support Directmedia. "The right to protection can be invoked only
if all (or substantial parts of) the database contents are
transferred ‘physically’, that is to say, are copied to another
medium."
That view, she said, "introduces a qualitative criterion, namely
the intellectual effort put in by the person who copies the
information from the database; and deems that, where that criterion
is satisfied, there is no extraction".
"On the other hand, it ties the concept of ‘extraction’ to a
particular (limited) definition of what is meant by ‘copying’ data
from a database. Neither of these limitations is convincing," said
Sharpston. She said she found no evidence in the EU Directive on
databases for the assertion that physical copying was necessary for
there to be an infringement.
"It therefore seems both inappropriate and arbitrary to limit
the concept of ‘extraction’ to a process by which data incorporated
within a database are transferred to another medium by ‘physically’
taking a copy (or copies) of them," she said. "Copying the bulk of
the data in a database individually by consulting the database
on-screen and then manually entering the data in another medium
cannot plausibly be considered to be any less damaging to the
investment made by the creator of the database than making an
electronic copy of those items from the original database and
pasting them directly into another electronic medium."
Sharpston found in favour of the University on the questions
referred to her. "I therefore conclude that ‘extraction’ … does not
presuppose the (physical) copying of data. In order to constitute
an ‘extraction’ … it is immaterial whether the transfer of data
from a database … and their incorporation in a different database
takes place following individual assessments of the data after
consulting the database," she said.
Despite the fact that the opinion strengthens the database right
while the BHB case weakened it, Shaprston said that her opinion was
based on the BHB ruling.
"It seems to me that transcribing the content of a database
after consulting it on-screen and then incorporating it into a
different database is just as likely to prejudice the investment of
the maker of the database as copying that database electronically
or photo-copying it," she said. "The Court’s analysis in The
British Horseracing Board does not presuppose that
‘extraction’ should be limited to these latter ways of copying
(parts of) a database."
