The decision by the European Court of Justice (ECJ)
means that the transfer of material from a protected database to
another database may be prevented, even if there is no technical
process of copying.
The ECJ affirmed the right of the University of Freiburg to
protect the content of a database of poem titles from commercial
exploitation by an unrelated company.
The judgment said that, where the maker of a database makes the
contents of that database accessible to third parties, even if they
have to pay for access, the maker may not prevent those third
parties from consulting that database for information purposes. It
is only when the on-screen display of the contents of that database
necessitates the transfer of all or a substantial part of those
contents to another medium that the maker's authorisation may be
required.
The EU Database Directive of 1996 created a right to protect the
content of databases that are the subject of significant
investment, even when they are not protected by copyright law.
Databases are protected by copyright law when they are considered
creative enough to qualify.
The right, however, has been a controversial one because of a lack
of clarity about the exact extent of its protection.
It 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 the horses and riders
running on a particular day.
The ECJ had ruled that the British Horseracing Board had not put
enough effort into the creation of its database to qualify for
protection in a ruling that was widely viewed then as weakening the
EU's database right.
The ECJ ruled yesterday in favour of the University of Freiburg
and one of its professors, Dr Ulrich Knoop. The ECJ did not have to
decide what constitute a database under the Directive. Instead, it
focused on what constitutes infringement.
Professor Knoop oversaw the compilation of the 1,100 most
important poems in German between 1720 and 1900. The list of titles
was published on the internet and served as the basis for an
anthology compiled by the university. The list took
two-and-a-half years to compile, costing 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
date from the period 1720 to 1900. All but 20 of these also
featured in Knoop's list.
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.
Germany’s Federal Court of Justice had already upheld the action
brought by Knoop as compiler of an anthology. It accepted that the
list of titles constituted a 'database' within the meaning of the
Directive, so the ECJ did not revisit the most controversial
analysis of the British Horseracing Board case. Instead, the ECJ
was asked whether Directmedia’s use of the contents of the database
constituted an ‘extraction’ within the meaning of the
Directive.
The judgment was delivered four months after ECJ Advocate
General Eleanor Sharpston published her opinion on the case, in
which she advised that extraction from a database "does not
presuppose the [physical] copying of data.”
She said: “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."
Sharpston said that her opinion was based on the British Horse
Racing Board 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.”
The ECJ agreed.
"It cannot … be argued, as Directmedia has done, that only acts
consisting of the mechanical reproduction, without adaptation, by
means of a standard ‘copy/paste’ process, of the contents of a
database or a part of such a database fall within the concept of
extraction," it said.
The judgment continued: “It is of little importance that the act of
transfer in question is for the purpose of creating another
database, whether in competition with the original database or not,
and whether the same or a different size from the original, nor is
it relevant that the act is part of an activity, whether commercial
or not, other than the creation of a database.
"Moreover … the transfer of all or a substantial part of the
contents of a protected database to another medium, which would be
necessary for the purposes of a simple on-screen display of those
contents, is of itself an act of extraction that the holder of the
sui generis [unique] right may make subject to his authorization,"
it said.
The judgment concluded: “The transfer of material from a protected
database to another database following an on screen consultation of
the first database and an individual assessment of the material
contained in that first database is capable of constituting an
‘extraction’ [within the meaning of the Directive] to the extent
that – which it is for the referring court to ascertain – that
operation amounts to the transfer of a substantial part, evaluated
qualitatively or quantitatively, of the contents of the protected
database, or to transfers of insubstantial parts which, by their
repeated or systematic nature, would have resulted in the
reconstruction of a substantial part of those contents."
The case now returns to Germany to resolve the original dispute,
in which the District Court ruled in favour of Knoop and the
University. Directmedia’s appeal to the Provincial Court of Appeal
failed so it appealed on a point of law to the Federal Court of
Justice. This court referred it in turn to the ECJ for a
preliminary ruling.
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