Database infringements depend on taking, not usage, of data

The Court said that data will count as being 'extracted' as soon as it is stored on a medium other than the other person's database. The length of that storage on the other medium will determine whether 'permanent transfer' or 'temporary transfer' has taken place.

The ECJ has ruled in a dispute between two Bulgarian legal publishers. The first, Apis-Hristovich EOOD (Apis), said that the second, Lakorda AD, copied its databases of laws and legal information. Lakorda was set up by ex-employees of Apis.

The Hungarian court asked the ECJ to clarify a number of issues related to database law. The Database Directive gives legal protection to databases if there has been "qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents" of it. This is called the sui generis right.

The Directive protects against "extraction and/or re-utilisation of the whole or of a substantial part…of the contents of that database".

The ECJ said that infringement was independent of the use to which someone wants to put the information.

"The concept of extraction is independent of the objective pursued by the perpetrator of the act at issue, of any modifications he may make to the contents of the materials thus transferred, and of any differences in the structural organisation of the databases concerned," the ruling said.

The court clarified that 'extraction' happens as soon as material is taken from a database and stored elsewhere.

"The time at which there is an extraction, within the meaning of Article 7, from a protected database, accessible electronically, is when the materials which are the subject of the act of transfer are stored in a medium other than that database," it said. "The delimitation of the concepts of ‘permanent transfer’ and ‘temporary transfer’ in Article 7 of Directive 96/9 is based on the criterion of the length of time during which materials extracted from a protected database are stored in a medium other than that database."

The ruling makes it clear that some of the circumstances surrounding one person's use of another's database can inform a court's decision about whether database rights have been infringed.

Apis argued that Lakorda's database had identical features to its, and that the structure and features of the database showed that copying had taken place. Common features included editor’s notes, references to translations of the documents into English, commands, fields, hyperlinks and the chronology of legislative measures.

The ECJ said that this could affect a court's decision, though courts should look for other explanations of why similarities might exist.

"The fact that the physical and technical characteristics present in the contents of a protected database made by a particular person also appear in the contents of a database made by another person may be interpreted as evidence of extraction…unless that coincidence can be explained by factors other than a transfer between the two databases concerned," it said.

"The fact that materials obtained by the maker of a database from sources not accessible to the public also appear in a database made by another person is not sufficient, in itself, to prove the existence of such extraction but can constitute circumstantial evidence thereof," said the ruling.

The ruling also clarified what actually counts as a database for the purposes of the Directive. Apis's databases were split into modules and the Bulgarian court asked how it should interpret 'substantial' parts of databases. Should each module be an independent database for judgment of the quantity of copied material, or should it be the entire database that is used for assessment?

The ECJ said that any module which was capable of being defined as a database under the terms of the Directive should be assessed as being itself a database. Any others can be a part of a wider database.

"[If] that module itself constitutes a database within the meaning of [the Directive] … the volume of materials allegedly extracted and/or re utilised from the module concerned must be compared with the total contents solely of that module," said the ECJ.

"[If that is not the case], in so far as the body of materials of which the module is a part itself constitutes a database eligible for protection by the sui generis right by reason of the combined application of Articles 1(2) and 7(1) of Directive 96/9, the comparison must be made between the volume of materials allegedly extracted and/or re-utilised from that module and any other modules, and the total content of that body of materials," it said.

Lakorda had argued in the Bulgarian court that the content of the database was free for it to use because the country's laws are not protected by copyright. The court disagreed.

"The sui generis right applies independently of whether the database and/or its contents are protected, inter alia, by copyright," said the ECJ's ruling. "The fact, alleged by Lakorda, that the materials contained in Apis’s legal information system are, by reason of their official nature, not eligible for copyright protection does not, as such, justify a collection consisting of those materials being refused classification as a ‘database’ within the meaning of Article 1(2) of Directive 96/9 or that such a collection should be excluded from the scope of the protection accorded by the sui generis right instituted by Article 7 of the Directive."