| Legislative
History [top]
The Directive has its
roots in the Green Paper on Copyright and the Challenge of
Technology, published by the European Commission in 1988
(COM(88) 172 final). In the Green Paper the Commission
observed that copyright might be inadequate in protecting
database producers. At a hearing that took place in
Brussels in April 1990 interested parties were given the
opportunity to express their views. During the hearing a
general preference for a copyright approach was expressed.
As the Commission reported in its Follow-up to the Green
Paper no support at all was given to a “sui generis”
approach (COM(90) 584 final).
Both the Van
Dale decision (Netherlands Supreme Court) and the Feist
decision (U.S. Supreme Court) strengthened the European
Commission in its belief that copyright was not the
optimal instrument in protecting databases. In the
Explanatory Memorandum to the original proposal the
relevance and scope of traditional copyright protection,
based on original arrangement and selection, are
critically examined.
On 13 May 1992, the
Commission presented its initial proposal to the Council.
A positive reaction from the Economic and Social committee
was the precursor to the first reading of the European
Parliament, more than a year later. On 23 June 1993, the
European Parliament voted for a resolution in support of
the proposal, subject to a large number of amendments (OJ
C 194). The amendment process resulted in an amended
proposal (COM(1993) 464) and Explanatory Memorandum, which
was presented by the Commission on 4 October 1993.
Thereafter, a period of relative silence set in until on
10 July 1995 the Internal Market Council, rather suddenly,
adopted a Common
position (OJ C 288/14), which was markedly different
from the amended proposal. The Common position was
accepted by the European Parliament, in a second
reading, on 14 December 1995 (OJ C 17). On 11 March
1996 the Directive
was finally enacted. The evaluation report by the European
Commission, which was due by the end of 2001, has been
postponed for at least a year. The European Community
website contains a comprehensive
overview of the European decision-making process.
New:
The long-overdue evaluation
of the Database Directive has finally been released by
the European Commission. The report is very critical of
the sui generis right; it finds that the economic impact
of the sui generis right on database production is
unproven, and discusses various future scenarios,
including repealing the Directive.
Interested parties are invited to comment
on the evaluation by 12 March 2006.
Austria [top]
Austria has transposed
the Directive into the Austrian
Copyright Act (
BGBL
1998, no. 25, effective 1 January 1998) much in the
same way as Germany.
ADV-Firmenbuch
II
Austrian Supreme Court (Oberste Gerichtshof), 28 May 2002
Plaintiffs
operate the Republic of Austria's online database
containing the official Austrian company register. The
defendants had used data from this database to update
their own databases (note: defendants are the same as in
the case decided by the Supreme Court on 9 April 2002,
see below). The court held that although the defendants
had indeed infringed the Republic's database right, this
did not mean that they had acted unlawfully (i.e.
competed unfairly) against the plaintiffs.
ADV-Firmenbuch
Austrian Supreme Court (Oberste Gerichtshof), 9 April 2002
Plaintiff,
the Republic of Austria, offered an online version of
the official Austrian company registry. The defendants
used data from the registry to update their own
databases. According to the court, the defendants had
extracted a substantial part of the database without
paying an appropriate remuneration. The Court rejected
application by analogy of the copyright exemption which
allows free use of government information. According to
the Court, this would not have been allowed under the
Database Directive's exhaustive set of permitted
limitations. The Court concludes that defendants have
infringed the Republic's sui generis database right.
Defendants are enjoined from extracting data without
paying adequate remuneration. However, the Republic may
not demand inappropriate remuneration for the
extraction. In the light of the 'essential facilities'
doctrine, this would otherwise amount to an abuse of a
dominating position on the market, in view of the
defendants' complete dependence on the data of the
Republic's website.
C-Villas
Austrian Supreme Court (Oberste Gerichtshof), 10 July 2001
Plaintiff maintained a
website containing information on holiday houses located
on a Caribbean island with links to independent
websites. The court held that the information had been
systematically arranged because a description of the
houses was given per island. It attached special
significance to the fact that the site gave access to
different websites, thereby making the information ‘independently
accessible’. Having found that the website constituted
a ‘database’, the court awarded copyright protection
by applying a classic originality test.
‘www.baukompass.at’
Austrian Supreme Court (Oberste Gerichtshof), 27 November
2001
Plaintiff had published
a business directory (‘yellow pages’) on CD-ROM.
Defendant ran a web site for the building industry
called ‘www.baukompass.at’, employing a search
engine which used data from the CD-ROM. According to the
court, the defendant had used a substantial part of the
contents of plaintiff’s database (i.e. the data
relating to the building sector), thereby violating its
database right. The court also noted that defendant’s
web site, including the data extracted from the CD-ROM,
might also qualify for database right by itself,
provided a substantial investment had been in made in
expanding the database. However, departing from the
Austrian Supreme Court’s holding in the C.-Compass
case, the Court clarified that such subsequent
substantial investment does not amount to ‘free
adaptation’ of plaintiff’s database.
‘C-Compass’
Austrian Supreme Court, (Oberste Gerichtshof), 28 November
2000
The appellant had
developed a database model for use on a website for the
respondent. The latter had made substantial changes to
this database.
The court held that the appellant does not violate the
respondent’s database right if the intended changes,
qualitatively and quantitatively, are the results of
substantial investment. (A year later, the Austrian
Supreme Court changed its view on this legal question in
the ‘www.baukompass.at’
decision, see above).
Belgium [top]
In November 1998, the law
(
French/Dutch)
transposing the Database Directive was adopted (Moniteur
Belge 14.11.1998, p. 36914). The copyright provisions of
the bill amended the existing Belgian Copyright Act.
Spot
(cinebel.be) v. Canal Numédia (allocine.be)
District Court (Tribunal
de première instance) Brussels, 18 January 2002
Plaintiff
and defendant both maintained websites offering
information on movie theatres, including the time
schedules of cinemas across Belgium. The defendant had
terminated a contract to purchase the schedules from the
plaintiff. However, after termination the defendant
continued to extract data from the plaintiff's website.
The court saw a substantial investment in the weekly
collecting and processing of the information, and held
that the investment must have been substantial, given
the fact that before terminating the contract the
defendant was prepared to pay to receive the information
from the plaintiff. Although the defendant had used only
a non-substantial part of the database, the defendant
had extracted and re-utilized repeatedly and
systematically from plaintiff's database. According to
the court this amounted to infringement of plaintiff's
sui generis database right.
Art
Research & Contact v. S. Boas
Belgium Supreme Court (Hof van Cassatie/Cour de
Cassation), 11 May 2001
Plaintiff
had collected and methodically arranged data about 530
sculptures in Brussels into a card system, in
preparation of a book that defendant was going to
publish. However, before the book was completed,
defendant and plaintiff decided to go their separate
ways. Defendant subsequently used parts of the database
to write and publish the book. According to the Court of
Appeal of Brussels (decision of 3 May 2000) plaintiff's
card system was protected by copyright, because the
structure of the data compilation was the result of
original selection and intellectual creation; defendant
was therefore found to have infringed plaintiff's
copyright. The Supreme Court confirmed the Court of
Appeal's decision, but underscored that copyright
protects merely the structure of a database, not the
actual data itself. (source: Auteurs & Media 2001-3,
p. 353-357)
N.V.
Syllepsis v. N.V. Wolters Kluwers Belgium
Court of Brussels, 28 July 2000
Syllepsis published
legal journals containing reports on and brief summaries
of Belgian case law, including the ‘ju.d.@.s.’ legal
database. Wolters Kluwer had included summaries made by
plaintiff in its online database, which listed
references to publications to Belgian case law
accompanied by a brief summary of each case. Did Kluwers
Wolters violate the plaintiff’s database right? The
court confined itself to a discussion of database
copyright, and concluded that the plaintiff had failed
to demonstrate that Wolters Kluwer had violated its
copyright.
UNMS v. Belpharma
Communication-
District Court (Rechtbank van eerste aanleg) Brussels 16
March 1999
This dispute concerned
the unauthorized extraction and re-utilization of a
pamphlet with information on ‘self-help’ groups
intended for the French speaking community. The
defendants had published their own (national) list of
self-help groups, inter alia, by copying plaintiff’s
pamphlet including even the mistakes. After confirming
that the list constituted a database, the court ruled
that plaintiff was the author of the (non-electronic)
database. The defendant was ordered to cease infringing
activities (source: Auteurs & Media 1999-3,
p. 370-73).
Denmark [top]
Because of the close cooperation in the Nordic countries
regarding the protection of copyright, the copyright
provisions of Denmark are similar to those of its Swedish
and Finnish neighbours. The
Database Directive was transposed by Act
Nr. 407 of 26 June 1998 (Lov om ændring af
ophavsretsloven), amending the Danish
Copyright Law (Lov om ophavsret) (English
version).
The sui generis right
appears to be inspired, at least in part, by the so-called
catalogue rule, a traditional (and unique) feature of
Scandinavian law. The copyright laws of all five Nordic
countries contain specific provisions protecting
non-original compilations of data, such as catalogues,
tables and similar compilations, provided they comprise
“a large number” of items. For the Nordic countries,
therefore, the Database Directive’s impact is relatively
limited. Pursuant to Recital 52 of the Directive, the
Nordic countries may retain all existing exceptions to the
catalogue rule.
‘Newsbooster.com’
District Court (Byret) Copenhagen, 16 July 2002
In July 2002, the first
Danish decision on the database right was reported. The
plaintiff operated a search engine ‘Newsbooster.com’
that deep-linked users directly to articles on other web
site, bypassing the other sites’ homepages - and
thereby the banner ads. According to the Copenhagen
Court, this practice infringed the sui generis database
rights of the owners of such other sites.
Finland [top]
The Directive has been
transposed by Finland by Act
Nr. 250 of 3 April 1998, which amends the Copyright
Act of 8 July 1961 as previously amended (click here
for an overview). A separate Act lays down law enforcement
provisions. The first reported Finnish decision concerning
the database right dates from February 2002 and has been
referred to the European Court of Justice for a
preliminary ruling.
Fixtures
Marketing LTD v. Oy Veikkaus Ab (English translation)
District Court, Vantaa, 1 February 2002
The defendant, betting
agency Veikkaus, used information from the plaintiff’s
fixture list of the English Premier League, for its
sport betting service. Fixtures claimed database right
to its fixture list, arguing that the list is a
protected database in the sense of the Database
Directive. Veikkaus however argued that the investments
made in the production of the collection of data were
not specifically directed at the obtaining, verification
and presentation of the database. The database,
arguably, is no more than a ‘spin-off’ of activities
falling outside the scope of database protection, and
therefore not eligible for database protection. The
District Court of Vantaa decided to put three questions
to the European Court of Justice for a preliminary
ruling (case C-46/02):
1. Can the
requirement in Article 7(1) of the Directive regarding
the investment being directed at the making of a
database be interpreted so that the ‘obtaining’
referred to in paragraph (1), and the investment in
the same, means in the case at hand the investment in
the determination of the match times and of the clubs
playing in each match itself, and does the drawing-up
of a fixture list involve investments which cannot be
taken into account when the criteria for protection
under the sui generis right are being assessed?
2. Is it an objective
of the Directive to protect the parties drawing up a
fixture list so that others cannot without permission
utilize the individual data in the fixture list in
sport betting activity or in other commercial
activity?
3. Is Veikkaus
utilizing a qualitatively and/or quantitatively
substantial part of the database, as required in the
Directive, in view of the fact that, at any one time
throughout the season, one week’s worth of match
data in the fixture list is utilized in the betting
coupons for that week and that the data is obtained
and verified from sources other than the maker of the
database?
France [top]
A bill amending the French
Code de la Propriété Intellectuelle (Intellectual
Property Code) was submitted to the Assemblée
Nationale on 22 October 1997. On 1 July 1998, the law
was adopted (J.O. 151, 2 July 1998, p. 10075). The
amendment has created a new Title IV of the Code,
comprising the sui generis right and relevant exemptions.
Jakata
and Pierre M. v. EIP
District Court (Tribunal de Grande Instance) Strasbourg,
22 July 2003
Pierre
M. had licensed Jakata to exercise rights over a
database. Jakata had sold three files, extracted from
this database, to EIP, without granting permission for
further use. Nevertheless, EIP had made the files
available on numerous websites. EIP claimed that from
the agreement Jakata could have concluded that it
intended to put the files to further use, and therefore
had given implicit permission. The court held that the
conduct of EIP amounted to the use of a substantial part
of a database and that, since the producer of a database
has the exclusive right of use and distribution, this
right can only be granted explicitly. The court
therefore held that EIP had infringed the database
rights of Pierre M., and had committed an act of unfair
competition against Jakata.
La
sociéte Sonacotra v. le syndicat Sud Sonacotra
District Court (Tribunal de Grande Instance) Paris, 25
April 2003
Sonacotra
had established a database containing all e-mail
addresses of her employees to be used inside the
company. It was not distributed outside of the company
and could only be used externally with prior consent of
the directors. Nevertheless, the Labour Union of
Sonacotra Sud ( le syndicat Sud Sonacotra ) used
the database, which was given to her by one of its
members, to send e-mails with Union-related information
to all employees of Sonacotra. The court confirmed that
the plaintiff had indeed established a database, and
thus should be given database protection, although the
costs of establishing the database could not be severed
from the costs of the e-mail system as a whole. The
court rejected the defendant's claim that as a Union it
had a right to communicate to its members using e-mail,
and therefore should be allowed to use the database.
SARL
News Invest v. SA PR Line
Court of Appeal (Cour d’appel) Versailles, 11 April 2002
The appellant had
extracted communications and financial reports from the
respondent’s database and used them for its own
Internet database. No more than ten communications and
two annual reports had been extracted in the course of
the second half of 1999. According to the court, this
may not be regarded as the extraction of a ‘substantial
part’ of the contents of the database. In the absence
of any other special circumstances, such as the
strategic or up-to-date character of the data at issue,
the court held that there was no reason to assume an
infringement of the respondent’s sui generis database
right.
Les
Éditions Néressis v. France Télécom Multimédia
services
District Court (Tribunal de grande instance) Paris, 14
November 2001
The defendant operated
a search engine that supplies information on the
accommodation listed on the plaintiff’s web site. A
web surfer looking for real estate information on
the defendant’s site (using parameters as price,
location, number of square meters, etc) would receive
information from the plaintiff’s site without being
able to access the plaintiff’s site via a hyperlink.
Although the defendant had not extracted all data from
the plaintiff’s database, the court held that the data
extracted did constitute a substantial part of the
contents of the database.
Sté
Tigest Sarl v. Sté Reed Exposition France et al
Court of Appeal (Cour d’appel) Paris, 12 September 2001
The respondents, Reed
Expositions, produced catalogues accompanying their
public exhibitions with information on all participants.
Tigest Sarl used the information in these catalogues for
its own databases. The court held that Reed Expositions
have a sui generis database right to their catalogues,
drawing particular attention to the substantial
investment made by Reed Expositions in the production of
their database. Tigest Sarl’s claim that the
respondents had abused their dominant position by
exercising their sui generis database right was
dismissed by the Court, and the decision in the first
instance was upheld.
(A similar action was brought before the court by Reed
Expositions (formerly known as the Groupe Millar
Freeman) against Neptune Verlag (Tribunal de Grande
Instance de Paris, 31 January 2001), see
below).
Cadremploi
v. Keljob
District Court (Tribunal de grande instance) Paris 5
September 2001
Cadremploi maintained a
number of websites providing access to a database
containing job records. Keljob operated a website which
indexed and summarized this information. After
clicking on a link, users were directed to the
Cadremploi website. According to the court, an
investment of 53.658.000 francs per annum amounts to a
quantitative investment, and the effort made by
Cadremploi with respect to the classification,
organization and esthetics of the site shows that there
also has been qualitative investment. Although the
information extracted from the database merely amounted
to 12% of the total data, these data were held to be the
most valuable part of the database, and therefore were
qualified as a substantial part. A sum of 600.000 francs
was awarded as damages, and further extraction was
prohibited. The decision was an appeal against the judgment
of the Paris Court of Appeal of 25 May 2001.
PRLine
v. Newsinvest
Commercial Court (Tribunal de commerce) Nanterre, 16 May
2000
This was an appeal
against a decision
of the Tribunal de commerce de Nanterre of 4 October
1999. PRLine provided financial information on the
Internet. Newsinvest also provided financial
information, updated on a daily basis, from the PRLine
website. The court quickly concluded that the
information on the PRLine website constituted a
database, of which PRLine was the author. It partly
derived this from the fact that, although the collection
of the data was easy, its verification and maintenance
required time and effort. It related the term ‘substantial
extraction’ to the use, which is made of the data.
Given the fact that Newsinvest was a competitor, the
daily extraction was held to amount to a substantial
part of the database’s contents. The court prohibited
any further publication of information from the PRLine
website on the Newsinvest website.
Miller
Freeman v. Neptune Verlag
District Court (Tribunal de Grande Instance) Paris, 31
January 2001
Miller Freeman
organized public expositions, which were accompanied by
a (paper) catalogue containing information on all the
participants. Neptune Verlag operated a website on the
same subject containing information extracted from the
Miller Freeman guides. A contractual clause prohibiting
commercial use of the catalogue rendered the defendant’s
claim of exhaustion without merit. After establishing
that the catalogue constituted a database, the court
continued by stating that the copying of the data on a
website was an infringement of Miller Freeman’s
database right. Although the court recognized the
possibility of a ‘dominant position’ defence, the
defendant had failed to substantiate this claim, and it
was therefore dismissed.
Groupe Moniteur et al v.
Observatoire des Marchés Publics
Court of Appeal (Cour d’appel) Paris, 18 June 1999
This case concerned the
unauthorized copying and distribution of advertised
calls for tender in the field of public procurement
which were published in a specialized journal.
Respondent had extracted calls for tender from the
monitor and other magazines, and compiled a document
delivery order form, which it distributed to its
clients. Appellant claimed infringement of its
copyrights and database rights, as well as unfair
competition. Copyright protection was rejected for lack
of originality. However, respondent’s actions were
considered to be of a parasitic nature, and therefore
constituted unfair competition. Database rights were not
granted. The compilation of calls for tender did
constitute a database in a legal sense, but appellants,
by simply reproducing the calls it received from its
advertisers, had not substantially invested in its
making. (source: Revue internationale du droit d’auteur,
January 2000 (183), pp. 316-329)
France
Télécom v. MA Editions
Commercial Court (Tribunal de commerce) Paris, 18 June
1999
France Télécom
offered an electronic directory accessible through
France’s still popular Minitel service. Defendants had
copied subscriber data without authorization, and made
the data available online via Minitel and the Internet.
The Paris Court first established that telephone
directories in whatever form are databases within the
meaning of the law. A substantial investment was found
in the costs of collecting, verifying and maintaining
the data. Defendants were found guilty of ‘pure and
simple piracy’, particularly because they had not
actively sought a license from plaintiff. In fact,
plaintiff had demonstrated its willingness to negotiate
a license for a reasonable fee, and in doing so had not
displayed anti-competitive behaviour.
Électre
v. T.I. Communication and Maxotex
Commercial Court (Tribunal de commerce) Paris, 7 May 1999
The case concerned the
unlicensed use on a website of a CD-ROM comprising
bibliographic information on works published in France.
As a subscriber to the CD-ROM plaintiff T.I.
Communications had agreed to conditions of use
prohibiting the dissemination of the CD-ROM’s
contents; the court, therefore, found no need to apply
the database right. Internet service provider Maxotex
was found not to infringe plaintiff’s database right;
according to the court, hosting an illegitimate website
does not amount to extraction or re-utilization. By
promptly closing the infringing site upon receiving
notice, Maxotax had avoided liability.
Dictionnaire Permanent
des Conventions Collectives
District Court (Tribunal de grande instance) Lyon, 28
December 1998
Possibly the first
French decision decided after implementation concerned
the ‘Dictionnaire Permanent des Conventions
Collectives’, a compilation of some 400 collective
bargaining agreements which had been previously
published in official journals. According to the Lyon
Court, the ‘Dictionnaire’, because of its original
presentation and the grouping under headings,
constituted a copyright protected database. However,
since defendant had simply reproduced the contents of
the agreements, and not copied any original elements
from the ‘Dictionnaire’ for its competing
publication, no copyright infringement was found. By
contrast, the defendant’s parasitic behaviour was
deemed unfair competition, the ‘Dictionnaire’
representing years of substantial investment.
Surprisingly, the new database right was not directly
applied. This decision has been upheld in an appeal
before the Cour d’appel de Lyon of 22 June 2000.
(source: RIDA July 1999 (181), pp. 325-331)
Germany [top]
The German legislature
was the first to implement the Database Directive. The Information
and Communication Services Act (BGB 1997 I p. 1870),
also known as the Multimedia Act, which was adopted on 1
August 1997, contains a special section (Article 7) which
transposes the Directive into the German
Copyright Act from 9 September 1965, as previously
amended (BGB 1965 I p. 1273). The Act rather loosely
follows the wording of the Directive.
'Paperboy'
Federal Supreme Court (Bundesgerichtshof), 17 July 2003
[abstract by Georg Nolte, Institute for Information Law,
Karlsruhe]
The
Defendant operated a search engine which specialized in
searching news articles published online. Upon entry of
key search words, the search engine browsed several
online-versions of newspapers made available to the
public by publishers on websites that were not
access-protected, in search for current articles. The
results were presented in the form of a list of deep
links that led the user directly to the related article.
In addition, the user got delivered some short fragments
of the article. Also, once the user had defined his
fields of interests in form of a number of keywords, the
user could get such a list of links every morning as a
personal newsletter (hence the name “Paperboy” of
the service). The legal question at issue was whether or
not such a service infringes any intellectual property
rights in the articles or websites referred to, and
whether such an activity might constitute an act of
unfair competition.
Although
in the case at bar, the complaint of the plaintiff was
dismissed by the Federal Supreme Court because it was
formulated too imprecisely, the Court ruled that the
service of Paperboy does not violate any rights of the
plaintiff, at least as long as no technical measures are
circumvented. Under German law, the setting of deep
links is neither subject to copyright nor does it amount
to unfair competition. Moreover, the Federal Supreme
Court held that the service and it's extraction of
fragments from the linked articles it operated are not
in conflict with a normal exploitation of the online
newspaper.
Hit
chart protected as database
Oberlandesgericht
(Court of Appeal) München, 10 October 2002, 29 U 4008/02
The
plaintiff had made a hit chart of music titles, which
was published weekly, based on sales numbers and radio
playing time. The defendant used the data of this list
for his own compilation, for which he used different
criteria. The defendant published this compilation in
printed form and on CD-Rom. The court ruled that the hit
chart of the plaintiff could not enjoy copyright
protection because the compilation of the list did not
show an element of 'personal creation'. The criteria
which were used, sales numbers and radio playing time,
were considered standard criteria for such a
compilation. The court, referring to Recital 15
preceding the Database Directive, also stressed that in
the possible case of copyright protection of a database,
this protection covers only the structure of the
database and not its content.
The
court did accept that the plaintiff's chart list was
protected by database right. However, since the
defendant had appropriated only data, and not taken any
outward features from the database, such as a ranking by
name, but applied different criteria for its own
compilation, which furthermore covered a longer period,
the court found that the defendant had not infringed the
plaintiff's database right. The same reasons were given
by the court for its opinion that the defendant's
behaviour did not amount to unfair competition.
IMS
Health v. Pharma Internet
Oberlandesgericht (Court of Appeal) Frankfurt am Main, 17
September 2002, 11 U 67/00
Plaintiff
IMS Health compiles and analyses sales figures for the
pharmaceutical industry. To this end IMS Health had
divided the German market into small geographical
segments, the so-called 'brick structure', into which
sales figures from pharmacies could be arranged in a
geographical order. Defendant had adopted the same brick
structure for its market research activities. The Court
of Appeal accepted that the brick structure (albeit
barely) reflected intellectual creation, and was
therefore copyright protected. The Court however denied
database right protection, judging that the brick
structure was merely a numerical classification system
which was not a substantial part of any database.
According to the Court, a classification system has
meaning only in combination with other data, and does
not have any informational value of its own. Although
Recital 20 of the Database Directive states that
'protection under this Directive may also apply to the
materials necessary for the operation or consultation of
certain databases such as thesaurus and indexation
systems', the simple classification of locations cannot
be seen as a such. A system of regional classification
would be comparable only to a table of contents, which
is not a substantial part of a database.
Compilation
of laws protected as database
District Court (Landgericht) Munich, 8 August 2002
Plaintiff
published legal texts (laws) in print, on CD-ROM and
on-line, some of which were reproduced without
permission on defendant's web site. The court considered
this collection to be a database. The substantial
investment was found in many years of gathering and
updating the collected legislation. Considering the fact
that a large number of grammatical errors on the
defendant's website were identical to the ones on
plaintiff's website, the court held that a substantial
part of the contents of the database had been extracted
and that there had been an infringement of the sui
generis database right. Although laws and statutes are
exempted from copyright protection, the court refused to
apply this exemption by analogy to the plaintiff's sui
generis database right, since the exhaustive list of
exemptions in Article 9 of the Database Directive would
not allow this.
A
deep link is not a substantial part of a database
District Court (Landgericht) Munich, 1 March 2002
The plaintiff operated
a web site containing a collection of articles from its
newspaper. Access was free, and funding was (in part)
provided by advertisements on the site’s homepage. The
defendant offered its clients a search engine to find
news articles indicating the location, the news
headings, the name of the (source) newspaper, the
subject and a brief summary of the article. Clients
could access the underlying articles by way of deep
links that lead directly to the requested articles,
thereby bypassing the home page of the respective site.
The Court deemed plaintiff’s site to constitute a ‘database’.
The defendant therefore violated the plaintiff’s
database right insofar as it used a substantial part of
the database or systematically extracted insubstantial
parts of the database. The defendant, however, did not
use the full texts of the articles, but merely stated
the Internet address (URL) and a brief summary of each
article. According to the court, the exact meaning of
the term ‘substantial’ must be evaluated,
qualitatively and quantitatively, on the basis of the
circumstances of each individual case. It must thereby
take account of the economic value of the part
extracted. In the light of this, a brief summary and a
‘deep link’ may not be regarded as a substantial
part of the database.
The court furthermore held that ‘the extraction of the
headings of some articles and their (Internet) locations
from the database does not amount to the extraction of a
substantial part of the database. To the extent that a
newspaper-like Internet site is regarded as a database,
the content of the articles, the format and the
classification of the contributions form the substantial
and economically significant part rather than the
heading, the deep link (Internet address) and a brief
summary’.
Database protection of
collection of headings on Internet
District Court (Landgericht) Munich, 18 September 2001
The plaintiff ran a
website consisting of a collection of (local news)
sections each subdivided into a list of (news) headings,
which were deep-linked to articles. Such a site must be
regarded as a database.
The defendant reproduces these headings including the
links to the articles on his Internet (news) site. This
is a violation of the rights of the database owner.
The court furthermore held that advertising with other
people’s database entrances for one’s own advertised
supply or keeping advertisement spaces available harms
the interests of the database rightholder since it
undermines the latter’s interest, namely to draw the
attention of third parties to the advertisements on one’s
own site. (source: Multimedia und Recht 1/2002,
pp. 58-60)
derpoet.de
District Court (Landgericht) Cologne, 2 May 2001
Plaintiff maintained a
collection of poems on www.derpoet.de.
The poems were ‘framed’ by the defendant’s
Internet portal. The court held that plaintiff’s
collection of poetry constitutes a ‘database’.
Framing of the texts amounted to a systematic and
repeated extraction of insubstantial parts of the
database. The court attached special importance to the
fact that the banners of the plaintiff were
circumvented, thereby causing harm to the plaintiff.
Stepstone
District Court (Landgericht) Cologne, 28 February 2001
Stepstone operated an
on-line job market. Defendant offered a job market with
a ‘framing’ search service, selecting information
from other job sites including Stepstone. Plaintiff asks
to confirm the injunction granted in the first instance.
The court concludes that the collection of jobs
constitutes a database. It dismisses defendant’s claim
that assessment of the substantiality of the investment
should take no account of the costs incurred with
respect to the database itself, but merely focus on the
costs related to the provision of information to the
market. Publication also includes framing and
circumvents the banners on plaintiff’s site. Defendant’s
claim that implicit consent is given by publishing its
data is also dismissed.
Medizinisches
Lexicon II
Higher Regional Court (Oberlandesgericht) Hamburg 22
February 2001
This case is an appeal
against the decision
of the Landgericht Hamburg of 12 July 2000. The Court of
Appeal confirms the acknowledgement of the lower court
that the medical lexicon constitutes a database. “Framing”
of the website containing the medical lexicon therefore
amounts to an unlawful reproduction of its database. The
fact that the appellant did not take any measures to
prevent framing does not imply a right for third parties
to frame the website.
Collection
of links as a database
Lower Court (Amtsgericht) Rostock 20 February 2001
The case concerned the
copying of a website containing a collection of links
which were organized by category. The court quickly
reached the conclusion that the collection of links was
sufficiently organized and individually accessible to
constitute a database. The court elaborated on the
substantial investment criterion. An investment was held
to be substantial if it has substantial weight (“substantielles
Gewicht”). Explicit reference was made to the English
rule of thumb “What is worth copying is worth
protecting”. In order to achieve the aims of the
Directive, a low standard of substantiality should be
applied, and small databases should be protected as
well. A line should be drawn only at very simple
databases. Although defendant’s database was not 100%
copied, a substantial part had indeed been copied.
(source: Multimedia und Recht, 9/2001, p.
631-632)
Branchenbuch
District Court (Landgericht) Düsseldorf 7 February 2001
Plaintiff collected
information on persons living on the isle of Rügen,
using publicly accessible data such as the yellow pages
and the trade register (“Handelsregister”).
Plaintiff placed this information in a database, which
he burned on a CD-ROM. Defendant, who operated a
software business, was commissioned to build a website
containing the data and, to that end, received the
CD-ROM. Parties had agreed to exploit the website
together. A year after the project failed, defendant
produced a website containing similar information to the
information of the CD-ROM. Plaintiff asked the court to
prohibit further use of the data. As regards the
database, the court concluded that there had not been
substantial investment. The public interest in freely
accessible information in casu overrided any substantial
investment made. No claim on the basis of unfair
competition, breach of confidence or copyright law is
granted and the case is dismissed.
Newspaper
Search Engine
District Court (Landgericht) Berlin 30 January 2001
Plaintiff’s newspaper
MainPost was published in print as well as on-line.
Defendant operated a news service called Newsclub. Every
five minutes, the archive of Newsclub was updated with
information taken from the on-line version of MainPost.
The archive was searchable and results were linked to
the related website. According to the court, the
searching in and storing of data found in databases by
search engines constitutes normal use. The fact that
plaintiff used tags to instruct search engines, did not
take any precautions to prevent deep-linking and made
the information publicly available all contributed to
this conclusion. The court failed to see any difference
between a normal search engine and the service offered
by defendant. In sum, no database right infringement was
found, nor did defendant’s actions constitute unfair
competition.
Search Engine for
Newspaper
Higher Regional Court (Oberlandesgericht) Cologne 27
October 2000
Defendant operated a
website and e-mail service, containing a search engine
that browsed through several on-line versions of
newspapers, including plaintiff’s paper, collecting
the headlines of the articles. The headlines were
presented on the website with deep links to the related
website. The headlines could also be selected on the
basis of search words, and then forwarded by e-mail. The
court assessed that no copyright infringement can be
assumed merely on the basis of the copying of the
headlines. The on-line version of the newspaper was
quickly identified as a database. However, given the
fact that the newspaper had been voluntarily placed on
the Internet, reproduction of the titles fell under “normal
use”, and did not amount to database right
infringement. The fact that the extraction took place
repeatedly did not result in the extraction of a
substantial part of the database. Even if this was a
case of repeated and systematic extraction of
unsubstantial parts of the database, defendant’s
behaviour was still regarded as “normal use”. The
bypassing of the website’s homepage by virtue of the
search engine was not deemed to amount to unfair
competition, taking into account the user’s interest
of fast access to relevant articles and the newspaper’s
interest of promoting its advertisements. (source:
Multimedia und Recht, 6/2001, pp. 387-391)
Database in print
Higher Regional Court (Oberlandesgericht) Dresden 18 July
2000
Defendant published a
magazine containing parts of defendant’s construction
magazine and its on-line version. In a most detailed
opinion, the court held, inter alia, that a collection
of information in print also constitutes a database. In
assessing the scope of “normal use”, the court
recognized that defendant’s magazine was distributed
throughout the federal district. The fact that defendant
had created a database of the collected information did
not affect the protection that was granted to plaintiff’s
database. The court also confirmed the sui generis
nature of the database right in relation to classic
copyright protection.
(Source: ZUM 7/2001, pp. 595-598)
Medizinisches
Lexicon I
District Court (Landgericht) Hamburg, 12 July 2000 [see
appeal]
This case concerned an
on-line database offering a medical lexicon which was
available both in book form and on CD-ROM. Plaintiff
objected to the linking to the database and subsequent
displaying in so-called frames by defendant. The lexicon
was held to be a database protected by copyright. The
individual creative effort was found in the structure of
the database, particularly in the user-friendly system
of information retrieval. The linking and framing were
held to constitute acts of reproduction not (implicitly)
authorized by plaintiff.
Insubstantial
parts of a database
Court of Appeal (Kammergericht) Berlin, 9 June 2000
Plaintiff (C.-Netz)
operated an online ticketing service, in cooperation
with some 300 to 400 event organisers. Defendant had set
up a similar service, and was accused of extracting
event data from plaintiff’s database, thereby
violating its database right. The court first examined
whether the C.-Netz database qualified for sui generis
protection. Noting that the data were not systematically
ordered, the court held that the requirement of
systematic arrangement does not imply that the data be
ordered in a physical sense. It is sufficient if the
data appear to be systematically arranged to the users
of the database. The court then went on to interpret the
scope of database right protection. Had a ‘substantial
part’ of the database been extracted? The court
emphasized that this requirement must be evaluated by
taking account of the proportion between the entire
database and the part extracted, the quality of the part
extracted in relation to the quality of the entire
database and the economic value of the part extracted
(see also the 1 March 2002 decision by the Munich Court
above). On the basis of these considerations, the court
concluded that the data extracted by the defendant did
not amount to a substantial part of the contents of the
appellant’s database.
Collection
of Links
District Court (Landgericht) Cologne, 12 May 2000
The District Court held
that a collection of links can qualify as a ‘database’.
MIDI-Files
District Court (Landgericht) Munich, 30 March 2000
The case concerned the
liability of an internet service provider for making
infringing MIDI (music) files available online. The
Munich Court held that a MIDI file does not constitute a
‘database’ within the meaning of the German
Copyright Act, because the data that make up the MIDI
file are not individually accessible.
Kidnet/Babynet
District Court (Landgericht) Cologne, 25 August 1999
The case concerned the
(electronic) copying of a website containing a catalogue
of 251 alphabetically ordered links to sites on
parenting-related subjects. The catalogue of links was
deemed a protected database. The required substantial
investment was found in the compiling, researching and
updating of the list by plaintiff. Considering the fact
that 239 of the 251 links were identical to the extent
that they contained the same grammatical errors, the
Court of Cologne ruled that the copying amounted to
unauthorized extraction and re-utilization.
baumarkt.de
Higher Regional Court (Oberlandesgericht) Düsseldorf 29
June 1999
Appellant operated a
website containing advertisements and information on
building construction and ‘do-it- yourself’
products. Respondent operated a search engine, which
linked to appellant’s website, and used frames to
display its contents. The court accepted that a website,
being a collection of web pages, might qualify as a
database subject to database right. However, appellant
had failed to show substantial investment in the
construction, maintenance or display of the data.
Moreover, since the advertisements were published on the
website on commission, the appellant was held not to be
the entity bearing the commercial risk, and therefore
could not be considered the database author. This case
was an appeal against the decision
of the Landgericht Düsseldorf of 29 April 1998.
Tele-Info-CD
German Supreme Court (Bundesgerichtshof) 6 May 1999
Three similar cases
were decided by the Bundesgerichtshof on the same day.
Possibly the first database right case to be decided by
a highest-level national court in Europe, the
Tele-Info-CD decision was a case of telephone directory
piracy. Respondents had scanned subscriber data from the
directories of Deutsche Telekom (the former German PTT),
and published the ensuing database on a CD-ROM. The
German Federal Supreme Court (Bundesgerichtshof) ruled
that telephone directories are not copyright works.
However, telephone directories, both electronic and
non-electronic ones, do qualify as protected databases
because of the substantial investment involved in their
production. The scanning of subscriber data was deemed
infringing on the rights of Deutsche Telekom. After
privatization of the company such databases do not
constitute ‘public works’ which might be exempted
from protection. In addition, the Supreme Court ruled
that the behaviour of respondents amounted to unfair
competition.
Süddeutsche
Zeitung
District Court (Landgericht) Cologne, 2 December 1998
The facts of this case
are similar to the Berlin Online case summarized below.
Plaintiff’s on-line database contained (small)
advertisements for real estate objects, which were
previously published in the Süddeutsche Zeitung
newspaper. The database was routinely searched by a
dedicated search engine, which returned the ads in
full-text to the users with mention of the name and date
of the newspaper. The court considered the collection of
advertisements to be a protected database, and remarked
that the processing and maintaining of the real estate
ads constituted a substantial investment. The use of the
search engine amounted to repeated and systematic
re-utilization of insubstantial parts of the database
that unreasonably damaged the lawful interests of the
owner of the database right. Again, the court found that
plaintiff had incurred losses because the advertisements
on the originating website were systematically bypassed.
Berlin
Online
District Court (Landgericht) Berlin, 8 October 1998
The on-line database
Berlin online, which contained classified ads from the
Berliner Zeitung newspaper, was systematically searched
by a ‘meta search engine’ (www.suche-was.de), that
automatically e-mailed search results to users. The
Berlin Court ruled that the conversion into digital form
and the selecting, updating and verifying of the ads
constituted a substantial investment under §87a (1) (1)
of the German Copyright Act. The use of the search
engine was held to amount to repeated and systematic
extraction of insubstantial parts of the database that
unreasonably damaged the lawful interests of the owner
of the database right. The website owner was deemed to
have incurred losses because the search engine
systematically bypassed the advertisements on the Berlin
online site.
The decisions in this
case and the SZ-online case of 29 September 1998 (see
below) both follow from the interlocutory decision of
the Berlin District Court of 23 July 1998. The
interlocutory decision had prohibited the use of the ‘www.suche-was.de’
search engine, i.e. the party acting as the defendant in
these two cases.
Internet
Databases
District Court (Landgericht) Berlin, 29 September 1998
The on-line database
SZ-online, which contained classified ads from the
Sächsischen Zeitung newspaper, was systematically
searched by a ‘meta search engine’
(www.suche-was.de), that automatically e-mailed search
results to users. The Berlin Court ruled that the
conversion into digital form and the selecting, updating
and verifying of the ads constituted a substantial
investment under §87a (1) (1) of the German Copyright
Act. The use of the search engine was held to amount to
repeated and systematic extraction of insubstantial
parts of the database that unreasonably damaged the
lawful interests of the owner of the database right. The
website owner was deemed to have incurred losses because
the search engine systematically bypassed the
advertisements on the SZ-Online site.
Greece [top]
Fixtures
Marketing Limited v. Organismos Prognostikon Agonon
Podosphairou AE
Single-Judge
Court of First Instance (Monomeles Protodikio Athinon)
Athens, 11 July 2002
The
Court of Athens requested a preliminary ruling by the
Court of Justice of the European Communities on the
interpretation of Article 7 of the Database Directive
regarding the following issues:
-
The
concept of databases and the scope of Directive 96/9
EC and in particular Article 7 thereof.
-
Further
to determination of the scope of the directive,
whether the lists of football fixtures enjoy
protection as databases over which there is a sui
generis right in favour of the maker and with what
consequences.
-
How
exactly the database is infringed and whether it is
protected in regard to rearrangement of the contents
of the database.
(For
similar cases, see the Finnish
and Swedish Fixtures
Marketing-cases)
Iceland [top]
An
English translation of the Copyright
Act can be found on the website of the Ministery of
Culture. The relevant articles are
no. 1, 6 and 50.
Sui
generis right to database of geographical maps
Supreme Court
(Høyesterett) 19 September 2002
(Prepared
by Ms Erla S. Árnadóttir, Lex Law Offices, Reykjavik)
In
1997 M. purchased from the State Geographical
Institution three themes (aerial lines, water and roads)
from a computerised database in the scale 1:250.000.
According to the conditions of purchase signed by M.,
permission from the State Geographical Institution was
necessary for reproduction or making documents, based on
the purchased information, available to the public. In
2000 M. published without permission from the State
Geographical Institution some maps in the scale
1:600.000, 1:300.000 and 1:100.000. The State
Geographical Institution took legal action against M.
and asked for a fee according to the tariffs of the
Institution. M. claimed that Article 10 of the Statute
on the State Geographical Institution (Statute 95/1997)
did not give a legal basis for claiming payment for the
use of data from the computerised database. M. argued
that the Icelandic state could not claim copyright in
the digital material, and that it therefore could not
ask for a fee. In its decision of 19 September 2002 the
Supreme Court of Iceland confirms the arguments of the
Institution on the rights of the state to the
computerised material. This constitutes a database in
digital form where the content consists of a derivation
of a map to which the Icelandic state owned the
copyright according to Article 1 of the Copyright Act.
The establishment of the database had required
considerable investment. The state therefore enjoyed the
rights under Article 50 (sui generis protection) of the
Copyright Act to this material. The Supreme Court found
that the Statute 95/1997 gave sufficient basis to claim
a fee for the sale and use of geographical information.
M. could not demonstrate that the State Geographical
Institution in its tariffs, which had been confirmed by
the Ministry, had asked for a disproportionate fee, or
that the fee in any way was unreasonable. M. was
therefore sentenced to pay the State Geographical
Institution the requested fee.
Ireland [top]
Ireland has transposed
the Database Directive in Part V of the
Copyright
and Related Rights Act in 2000. No case law has been
reported.
Italy
[top]
In Italy, the database
directive has been implemented by virtue of the Attuazione
della direttiva 96/9/CE relativa alla tutela giuridica
delle banche di dati, amending the Copyright Act of
1941 as previously amended. No case law has yet been
reported.
Luxembourg [top]
Luxembourg’s new
copyright act, the
Loi
du 18 avril 2001 sur les droits d’auteur, les droits
voisins et les bases de données (2001, A-50, p.
1042), contains a sixth section which is dedicated to the
protection of databases.
The Netherlands [top]
In The Netherlands the
Database Directive was transposed by the
Act
of 8 July 1999, Staatsblad 1999, 303, effective 21
July 1999 (see unofficial English
translation). The Dutch legislature has elected to
implement the Directive in two different legal
instruments, the existing Copyright Act and a new Database
Act, that introduces the database right.
Stichting
Vrije Recreatie v. Vakantieboerderij.nl
President
District Court (Arrondissementsrechtbank) Zutphen, 2
September 2003
The
plaintiff's website consisted of a database with more
than 1500 addresses of holiday farms
('vakantieboerderijen'). The defendant's website was
similar to the plaintiff's website in its outward
features, but consisted of only 600 addresses. The
plaintiff accused the defendant of copying its database
and re-utilizing the data for its own website(s). The
defendant alleged that he had gathered the information
on his own effort, and supported this claim by showing
numerous leaflets, copies of websites of individual
holiday farms and (handwritten) letters of farm owners.
The President of the District Court concluded that
plaintiff had failed to prove that defendant had copied
plaintiff's database, or a substantial part of it, and
denied the requested injunction.
Wegener
et al v. Hunter Select
Court of Appeal (Gerechtshof) Leeuwarden, 27 november 2002
(also see 18 July 2002)
On appeal, the main
issue was whether the jobs section of the Saturday
edition of plaintiff’s newspapers constituted a ‘database’
within the meaning of the Database Act. Hunter Select
argued that the jobs section was not arranged in a
systematic or methodical way, was not individually
accessible and did not bear witness to a substantial
investment. The Court noted that plaintiff’s
newspapers had recently introduced an index of this
section which separately lists the type of vacancy
advertised in the section. Moreover, some small
vacancies have not been indexed but are clearly
numbered. The Court of Appeal held that said index
and/or numbering amount to a sufficiently systematic
and/or methodical arrangement of the data. It noted that
the requirement of a systematic or methodical
arrangement of data does not necessarily imply a
requirement of quick and efficient access to the data.
As regards the
requirement of the individual access, the court held
that the Explanatory Memorandum to the Database Act
stated that this requirement means that the entire
database must be searchable and that it must be
concluded in the light of that definition that the jobs
section complies with the requirement of individual
access.
Finally, Hunter Select
had invoked the ‘spin-off’ argument, alleging that
since the 'production’ of jobs-section database
was not the primary objective of the newspaper no
substantial investment had been made. In this respect,
the court considered the following: a substantial
investment may be evaluated in the light of the
presentation of the contents. The presentation of the
contents of a non-electronic database may, for example,
refer to the presentation of a printed edition.
According to the court, Wegener et al have sufficiently
demonstrated that they have made a substantial
investment in the presentation of an orderly edition of
the jobs section in print. The spin-off argument
therefore fails to the extent that the jobs section may
not be regarded as a mere ‘by-product’ of other
activities.
The court therefore
concluded that the jobs section in the Saturday edition
of a newspaper might be regarded as a database within
the meaning of the Database Act. Given that Hunter
Select had extracted and/or summarized essential
information from such databases, it had violated the
database right of Wegener et al under Article 2 Database
Act.
Publishers
v. Euroclip et.al.
District Court (Arrondissementsrechtbank) Amsterdam, 4
September 2002
This dispute revolved
around the question as to whether a newspaper or a
magazine constitutes a database within the meaning of
the Database Act and the Directive. The court noted that
the notion of ‘database’ is very broadly defined in
the Database Act. However, given the objective and the
intention of the Directive, from which the Database Act
arises, the database must contain elements of a work of
reference, i.e. its components must be
individually accessible, in order to be eligible for
protection. A newspaper or magazine is primarily
intended to provide information and does not contain
such elements, at least insufficiently. Printed
newspaper or magazine articles cannot be accessed
individually to such an extent that a newspaper or
magazine amounts to a database in the sense of the
Database Act.
Wegener
et al v. Hunter Select
President District Court (Arrondissementsrechtbank)
Groningen, 18 July 2002
(also see 27
November 2002)
Hunter Select had
copied job advertisements from Wegener’s newspapers
and used them on its website ‘www.
nationale-vacaturebank.nl’. Wegener argued that a
newspaper consists of a collection of works that are
arranged in a systematic and methodical way, and
therefore qualifies as a ‘database’. Moreover, since
the different sections of a newspaper are also arranged
in such a way, each section constitutes a subdatabase.
The District Court held that an essential characteristic
of a database is that its content is composed of a
collection of data arranged in a systematic or
methodical way. However, the objective of such an
arrangement is to enable people to consult the data
quickly and efficiently. According to the Court, the
articles and ads in a newspaper as a whole are arranged
in such a way as to provide readers with a clear survey,
rather than as a work of reference that they may consult
quickly and efficiently. The claim was therefore
dismissed.
NVM
v. De Telegraaf
Netherlands Supreme Court (Hoge Raad), 22 March 2002
(also see 12 September 2000;
21 December 2000)
The appeal in cassation
focused on the following questions:
a. Can a database
consist of a collection of (sub-)databases?
This question is important in order to determine
whether a search extracts a substantial part of the
entire database or of a smaller sub-database. The
Supreme Court held that it is possible for a database
to be composed of a collection of databases.
b. Is the NVM
database entitled to database protection? The Court of
Appeal had answered this question in the negative by
holding, inter alia, that it had been insufficiently
made plausible that the investments required for the
obtaining, verification or presentation of the
contents database had been made specifically for the
on-line database. In this context the Supreme Court
dismissed the distinction made by the Court of Appeal
between an off-line and on-line database. The
investments made in the off-line version should also
be taken into account in respect of the on-line
database. According to the Supreme Court, the ‘spin-off’
theory did not apply to the facts of the case.
De
Telegraaf v. NOS and HMG
Netherlands Competition Authority (Nederlandse
mededingingsautoriteit, NMa), 3 October 2001
In an appeal against
the decision of the NMa of 10 September 1998, the
original decision was upheld. According to the NMa,
television program listings are not protected by
database right due to a lack of substantial investment.
Fiscaal
up to date (Futd) v. Kluwer
Netherlands Competition Authority (Nederlandse
mededingingsautoriteit, NMa), 6 July 2001
Futd produces fiscal
information aimed at fiscal experts. One of its products
is a CD-ROM containing an electronic fiscal databank.
Futd accused Kluwer, the dominant firm on the market of
fiscal and legal publications, of abusing its dominant
position by refusing to supply transcripts of court
judgments and annotations to Futd. The NMa dismissed the
complaint. Since no copyright exists in court judgments,
Futd is free to use these without Kluwer’s permission.
Moreover, since the market for annotated court opinions
is freely accessible to Futd, there is no abuse of a
dominant position.
NOS
v. De Telegraaf
Court of Appeal (Gerechtshof) The Hague, 30 January
2001
The dispute between De
Telegraaf and the broadcasters, which was previously
brought before the Netherlands Competition Authority,
has continued before the civil courts. Pending the final
outcome of the competition case, De Telegraaf had copied
program listings for publication in its weekly
television guide. Applying the ‘spin-off’-doctrine,
the Court of Appeal of The Hague held that the
broadcasters did not enjoy database right protection for
their listings because no substantial investment in the
making of the database, above and beyond any investments
in the programming as such, had been demonstrated. Even
so, the broadcasters were awarded copyright protection
in their ‘non-original writings’. However, their
consistent refusal to license the listings under
reasonable terms was held to constitute anti-competitive
behaviour. In sum, no injunction was granted.
Presscorp v. GoldNet
Media
District Court (Arrondissementsrechtbank) Almelo, 28
December 2000
Presscorp owned a
selection of addresses of businesses which it publishes
on-line and on CD-ROMs. GoldNet Media operated an
on-line search engine, which offered the same service as
Presscorp. According to the Court, Presscorp’s
collection of addresses and its presentation were
sufficiently original to enjoy copyright protection, and
its copyright had been infringed. However, no
infringement of plaintiff’s database right in the
compilated telephone and address data could be
established. (source: IER, 3/2001, pp. 108-111)
KPN
v. Denda International et al
District Court (Arrondissementsrechtbank) Almelo, 6
December 2000
(see also 15 April
1997)
In one of many cases
litigated between KPN (the former Dutch PTT) and Denda,
the District Court of Almelo had to consider inter alia
whether acts committed prior to enactment of the
Database Act, but following the expiry of the
implementation time-limit, constituted a database right
infringement. The court ruled that the Database
Directive was not applicable, because application would
undermine legal certainty. The Dutch Copyright Act has
traditionally protected non-original writings, i.e.
texts, compilations of data and other information
products expressed in alphanumerical form, that do not
meet the test of originality. Applying old law, the
court awarded copyright protection to plaintiff’s
telephone directory as a non-original writing. In
respect of acts committed after implementation, the new
Database Act was applied. The court did not accept the
‘spin-off’ argument presented by defendants.
According to the court, KPN’s directory database did
reflect substantial investment even though it was
directly derived from its ‘8008’ subscriber data
file.
Algemeen
Dagblad et al v. Eureka (unofficial
English translation)
President District Court (Arrondissementsrechtbank)
Rotterdam, 22 August 2000
This case concerned a
website (‘Kranten.com’) providing automatic
hyperlinks to newspaper articles posted on-line.
Newspaper publisher PCM argued, inter alia, that the
unauthorized use of headlines constituted database
infringement. The court did not agree; the headlines
were a mere by-product (‘spin-off’) of newspaper
publishing, and therefore did not reflect any
substantial investment. Moreover, PCM had failed to show
that by Kranten.com’s systematic linking to underlying
web pages (‘deep’ linking) it had lost advertising
revenue.
NVM
v. De Telegraaf (‘El Cheapo’)
Court of Appeal (Gerechtshof) The Hague 21 December 2000
(also see 22 March
2002; 12 September 2000)
The court’s decision
in first instance in the ‘El
Cheapo’ case was overturned by the Court of Appeal
of The Hague. After confirming that the collection of
real estate objects was a database in a technical sense,
the Court ruled that the required substantial investment
in the database had not been proved. Individual NVM
agents had previously set up the database for use in an
internal network; therefore the database was considered
a mere ‘spin-off’ of other activities.
NVM
v. De Telegraaf (‘El Cheapo’)
President District Court (Arrondissementsrechtbank) The
Hague, 12 September 2000
(also see 22 March
2002; 21 December
2000)
The District Court of
the Hague found database right infringement in a case
pitting the Dutch organization of real estate brokers
NVM against newspaper publisher De Telegraaf. The latter
operated a web-based search agent (‘El Cheapo’)
which allowed users to look for real estate and other
goods for sale. According to the court, El Cheapo’s
retrieval of data from the NVM web site amounted to
unauthorized extraction and re-utilization within the
meaning of the Database Act. Remarkably, the court added
that even the extraction of small amounts of data would
qualify as (‘qualitatively’) substantial extraction,
since just a few search results might be of great value
to end users.
KPN
v. XSO
President District Court (Arrondissementsrechtbank) of the
Hague, 14 January 2000
The District Court of
the Hague held that the operator of a dedicated search
engine infringed KPN’s database right by providing
data extracted from KPN’s on-line telephone directory,
without referring users of the service to its site, and
thereby denying KPN advertising revenue. The court
expressly rejected the ‘spin-off’ argument.
De
Telegraaf v. NOS and HMG
Netherlands Competition Authority (Nederlandse
mededingingsautoriteit, NMa), 10 September 1998 [see
appeal]
The very first decision
by the Netherlands Competition Authority, which was
established on 1 January 1998 following the enactment of
the new Competition Law, dealt (inter alia) with
possible abuse of copyright and database right.
Newspaper publisher De Telegraaf was refused a license
in respect of the radio and television program listings
owned by broadcasters NOS and HMG. Inspired by the
Magill decision of the European Court of Justice, the
Authority opined that the broadcasters had abused their
dominant position. By refusing to license, Dutch
consumers were effectively prevented from buying
newspapers containing program listings, a type of
information product that did not exist on the Dutch
market. Interestingly, the decision also contains an
analysis of the scope of the new database right. The
Competition Authority questioned whether the requirement
of ‘substantial investment’ had been fulfilled, the
program listings being a mere spin-off of the
broadcasters’ main activities.
Vermande
v. Bojkovski [English
translation]
President District Court (Arrondissementsrechtbank) The
Hague 20 March 1998
The Vermande/Bojkovski
case, which was decided prior to implementation,
concerned the unauthorized publication on a web site of
laws and regulations copied from a commercially
published CD-ROM. According to the District Court of The
Hague, the Database Directive did not permit a statutory
limitation of the sui generis right in respect of such
compilations. Under the Directive the CD-ROM publisher
would, therefore, have been protected. However, since
implementation had not yet been completed, and Article
11 of the Dutch Copyright Act clearly places laws and
regulations in the public domain, no injunction was
granted. The case eventually led to the adoption in the
Dutch Database Act of a provision (Article 8(1)) that
rules out government ownership of database rights in
respect of laws, decrees, ordinances, as well as court
and administrative decisions. The provision is
supposedly based on the catch-all provision of Article
13 of the Directive, that leaves ‘laws on [….]
access to public documents’ intact.
KPN
v. Denda International et al
Court of Appeal (Gerechtshof) Arnhem, 15 April 1997
(see also 6 December 2000)
This case was decided
prior to implementation of the Database Directive. It
concerned wholesale copying of telephone subscriber
listings owned by KPN Telecom, the former Dutch PTT. The
Arnhem Court of Appeal did not accept Denda’s argument
that KPN’s collection of subscriber data was a mere
spin-off of its core activity as a provider of telephone
services, and therefore did not constitute a ‘substantial’
investment. The court did find that KPN would abuse its
dominant position by refusing to license its data under
fair and reasonable terms. See the final judgment by the
Arnhem Court of Appeal, 5 August 1997, [1997]
Informatierecht/AMI 215 The dispute has continued before
the Dutch Post and Telecommunications Authority (OPTA).
KPN was eventually ordered to license its subscriber
data for a very small fee. See Denda v. KPN, Dutch Post
and Telecommunications Authority (OPTA), 29 September
1999, [2000] Computerrecht 47. The fee was set at
less than f 0,005 per datum see [1997] Mediaforum
5, pp. B72-B76.
Portugal
[top]
The Portuguese Decree
Law 122/2000 of 4 July 2000 implements the Database
Directive, and has created a sui generis right as well as
complementary copyright protection for databases.
Spain
[top]
In Spain the Database
Directive was implemented by the Act
of 7 March 1998 (BOE No. 57, 7 March 1998 p. 7935),
amending the
Spanish
Law on Intellectual Property. The Act closely follows
the wording of the Directive. The copyright provisions of
the Directive are integrated in the copyright part (Book
I) of the Law. The sui generis right is laid down in Book
II of the Law, together with existing neighbouring rights.
Programacion
Integral v. TLR Soft
District Court
(Tribunal de primera instancia) O Porriño (Pontevedra),
11 November 2002
The
plaintiff had acquired the exclusive right to exploit a
database. He commercialised the data and sold it on
CD-Rom and through his website, where a password was
needed to obtain the information stored in the database.
Since he had invested time and effort to keep the
information stored in the database up to date, the
plaintiff was considered to be the maker of the
database. The defendant's director used to work for a
client of the plaintiff, and thus had enjoyed
(legitimate) access to his database. The defendant now
operated a website offering similar information as the
data stored on the plaintiff's website. Plaintiff
accused the defendant of downloading the information
from the plaintiff's website and using it on his own
website, thereby infringing the plaintiff's database
rights. He supported this claim by showing the existence
of numerous identical errors in the information on the
website of the defendant and on his own website. The
Court concluded this enough evidence to assume database
right infringement.
Editorial
Aranzadi
District Court (Tribunal de primera instancia) Elda
(Alicante), 2 July 1999
The case concerned the
unauthorized reproduction and posting on the Internet of
a database containing case law and legislation. The
publisher had put time and effort into the compilation,
systematizing and introduction of the material. Although
defendant had altered the identification codes placed in
the document by plaintiff to prevent copying, defendant’s
actions were held to infringe the publisher’s database
right.
Sweden [top]
Sweden has implemented
the Directive by way of the Act
of 6 November 1997 (Act 1997: 790) which entered into
force 1 January 1998. The act has amended paragraph 49 of
the Swedish Copyright Act of 1960 [EN,
amended up to 1 January 1996 (excluding database
Directive)] [SW]
(1960: 729) as previously amended. As in other Nordic
countries, the database right has been implemented as an
‘upgrade’ of the existing catalogue rule (see Denmark).
Fixtures
Marketing Ltd. v. AB Svenska Spel
Supreme Court of Sweden (Högsta Domstolen), 10 September
2002.
In a case similar to
the Finnish case of Fixtures
v. Veikkaus, the Swedish Supreme Court sought a
prelimenary ruling by the European Court of Justice on
the following questions (Case C-338/02):
1) In assessing
whether a database is the result of a ‘substantial
investment’ within the meaning of Article 7(1) of
Council Directive 96/9/EC of 11 march 1996 on the
legal protection of databases (the ‘database
directive’) can the maker of a database be credited
with an investment primarily intended to create
something which is independent of the database and
which thus does not merely concern the ‘obtaining,
verification or presentation’ of the contents of the
database? If so, does it make any difference if the
investment or part of it nevertheless constitutes a
prerequisite for the database?
AB Svenska Spel contends in this case that Fixtures
Marketing Limited’s investment is primarily
concerned with the drawing up of the fixture lists for
the English and Scottish football leagues and not with
the databases where the data are stored. Fixtures
marketing Limited, for its part, argues that it is not
possible to distinguish the work for the purpose of
planning the game and that the purpose of drawing up
the fixture lists.
2) Does a database
enjoy protection under the database directive only in
respect of activities covered by the objective of the
database maker in creating the database?
AB Svenska Spel contends that Fixture Marketing
Limited’s creation of the database is not intended
to facilitate football pools and other gaming
activities but that such activities are a by-product
of the purpose of the investment. Fixtures marketing
Limited, for its part, argues that the purpose of the
investment is irrelevant and disputes that the
possibility of exploiting the database for football
pools constitutes a by-product of the actual purpose
of the investment in the database.
3) What do the terms
‘a substantial part, evaluated qualitatively and/or
quantitatively, of the contents of that database’ in
Article 7(1) mean?
4) Is the directive’s
protection under Article 7(1) and Article 7(50 against
‘extraction and/or re-utilisation’ of the contents
of a database limited to such use as entails a direct
exploitation of the base or does the protection also
cover use in cases where the contents are available
from another source (second-hand) or are generally
accessible?
AB Svenska Spel contends that the company had no
knowledge of the databases and obtained the data for
the pools coupons from other sources and that what
appeared on the pools coupons was not the whole or
substantial part of the fixture lists. Fixture
Marketing Limited, for its part, argues that it was
irrelevant to the assessment whether the data were
obtained from sources other than the fixture lists
since the data originally came from them.
5) How should the
terms ‘normal exploitation" and ‘unreasonably
prejudice’ in Article 7(5) be interpreted?
Fixtures Marketing Limited argues that AB Svenska Spel
has repeatedly and systematically extracted and
re-utilised the contents of the database for
commercial purposes, in a manner which conflicts with
a normal exploitation of that database and thereby
unreasonably prejudiced the football leagues. AB
Svenska Spel, for its part, contended that it is wrong
to look at several pools coupons together in making an
assessment and disputes that their use is in breach of
Article 7(5) of the directive.
United Kingdom [top]
In the United Kingdom the
Database Directive has been implemented by way of the Copyright
and Rights in Databases Regulations 1997 (SI
1997/3032, HSI-Issue 302, p. 10145), which were adopted by
the Secretary of State for Trade and Industry on 18
December 1997 (effective 1 January 1998). Part II of the
Regulations amended the Copyright,
Designs and Patents Act 1988 (CDPA). In the UK a
compilation may be protected in three ways: by database
copyright, ‘skill and labour’ copyright, and database
right (sui generis right). It remains to be seen whether
this is in accordance with the Directive.
British Horseracing Board
(BHB) et al. v. William Hill Organization Ltd.
Court of Appeal, 31 July 2001
(see also 9 February 2001)
In an appeal against
Laddie J.’s decision in first instance, the Court of
Appeal held that the lower court had rightly concluded
that the data used by William Hill were extracted from
the BHB database. The appeal also raised a series of
questions concerning the proper interpretation and scope
of the database right, which were referred to the
European Court of Justice for a preliminary ruling (see
below).
British
Horseracing Board (BHB) v. William Hill Organization Ltd.
High Court of Justice, 9 February 2001
(see also 31 July 2001)
On-line bookmaker
William Hill used racing information compiled by the
governing body of horse and dog racing (BHB) for its
betting web sites. Laddie J. ruled that the BHB database
is protected by database right. BHB was found to have
invested substantially in the controlling and up-keeping
of its database. William Hill had copied a substantial
part of the database, by extracting core information,
such as the times and places of the races, in a repeated
and systematic manner. In passing, the court noted that
so-called ‘dynamic’ databases, requiring constant
updating, are also protected by database right.
Case
C-203/02, Reference
for a preliminary ruling by the Court of Appeal
(England and Wales) (Civil Division), by order of that
court dated 24 May 2002 on the following questions:
1. May either of the
expressions:
(a) ‘substantial
part of the contents of the database’; or
(b) ‘insubstantial
parts of the contents of the database’
in Article 7 of the
Directive include works, data or other materials derived
from the database but which do not have the same
systematic or methodical arrangement of and individual
accessibility to be found in the database?
2. What is meant by ‘obtaining’
in Article 7(1) of the Directive? In particular, are the
facts and matters in paragraphs 24-31 above capable of
amounting to such obtaining?
3. Is ‘verification’
in Article 7(1) of the Directive limited to ensuring
from time to time that information contained in a
database is or remains correct?
4. What is meant in
Article 7(1) of the Directive, by the expressions:
(a) ‘a substantial
part, evaluated qualitatively ... of the contents of
that database’? and
(b) ‘a substantial
part, evaluated quantitatively ... of the contents of
that database’?
(5) What is meant in
Article 7(5) of the Directive, by the expression ‘insubstantial
parts of the database’?
(6) In particular, each
case:
(a) does ‘substantial’
mean something more than ‘insignificant’ and, if
so, what?
(b) does ‘insubstantial’
part simply mean that it is not ‘substantial’?
(7) Is ‘extraction’
in Article 7 limited to the transfer of the contents of
the database directly from the database to another
medium or does it also include the transfer of works,
data or other materials, which are derived indirectly
from the database, without having direct access to the
database?
(8) Is ‘re-utilization’
in Article 7 of the Directive limited to the making
available to the public of the contents of the database
directly from the database, or does it also include the
making available to the public of works, data or other
materials which are derived indirectly from the
database, without having direct access to the database?
(9) Is ‘re-utilization’
in Article 7 of the Directive limited to the first
making available to the public of the contents of the
database?
(10) In Article 7(5) of
the Directive what is meant by ‘acts which conflict
with a normal exploitation of that database or
unreasonably prejudice the legitimate interests of the
maker of the database’? In particular, are the facts
and matters in paragraphs 40-47 above in the context of
the facts and matters in paragraphs 32-35 above capable
of amounting to such acts?
(11) Does Article 10(3)
of the Directive mean that, wherever there is a ‘substantial
change’ to the contents of a database, qualifying the
resulting database for its own term of protection, the
resulting database must be considered to be a new,
separate database, including for the purposes of Article
7(5)?
Mars
v. Teknowledge
High Court, Chancery Division, 11 June 1999
The case concerned a
programmable semiconductor chip (discriminator)
installed in Mars vending machines. The chip can be
programmed and re-programmed with the parameters of
acceptable coinage in order to discriminate fake coins
used by consumers. Teknowledge succeeded in deciphering
the encryption code on the chip and offered its own
re-programming service. Mars sued for infringement of
copyright and database rights, and breach of confidence.
Teknowledge objected on the basis of the common law ‘right
to repair’ and the ‘spare part defence’ pursuant
to the British Leyland precedent. The judge ruled that
neither UK law nor the European Computer Programs or
Database Directives allow Member States to provide for a
‘right to repair’. Although Article 6(2)(b) of the
Database Directive allows Member States to provide for
exceptions from copyright protection recognized by
domestic law, that exception must be adopted by Member
States through legislation. It was not for judges to
implement the Directive on the Member States’ behalf.
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