by Prof. P.Bernt Hugenholtz, assisted by Shoba Sukhram, Ot van Daalen, Nynke Hendriks, Eric Idema, Moïra Truijens and Marloes Bakker.

Index

• Legislative History
• Implementation within EU member states and national court Case Law
  • Austria
  • Belgium
  • Denmark
  • Finland
  • France
  • Germany
  • Greece
  • Iceland
  • Ireland
  • Italy
  • Luxembourg
  • the Netherlands
  • Norway (2 new documents, updated 13-12-2006)
  • Poland
  • Portugal
  • Spain
  • Sweden
  • the United Kingdom
• European Court of Justice Case Law
• Publications regarding the directive

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.

The long-overdue evaluation of the Database Directive has recently 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.

Implementation within EU member states and national court Case Law [top]

Member States were to have implemented the provisions of the Directive by 1 January 1998 (Article 16 § 1). Only a handful of states have met this deadline, but by now every EU member has adopted the Directive in its national legislation.

New (updated: 07-08-2006) Overview Implementation of Directive 96/9/EC 
(Source: European Commission)

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.

Bolig.ofir.dk v. Home.dk
Danish Maritime and Commercial Court, 24 February 2006

The Danish web portal Bolig.ofir.dk had made deep links to real estate advertisements on the internet, including advertisements from the market leading estate agency chain Home.
The Court held that the establishment of the Home.dk database may largely be considered to have been derived from the real estate chain’s main business, the sale of real property, use for advertising and presentation of the properties offered. In terms of database law the Home.dk website consists of collected, already existing material. Therefore, the database protection established by means of Article 7(1) Database Directive does not cover this database.
If it is also taken into consideration that Bolig.ofir.dk’s users -  who can choose to switch to either the front page or, if using a deep link, directly to the property advert page on the petitioner’s homepage where no banner adverts are used – are informed of the approaching switch before the switch to the page of the real estate agent is effected, the Court does not find that the respondent is infringing §1 of the Marketing Act by providing a deep link on Bolig.ofir.dk for the users.

‘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.

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.

eBay International AG v. [X]
District Court (Landgericht) Berlin, 27 October 2005

Plaintiff organizes the online-marketplace eBay, in Europe. On the European eBay website there are two databases: one, which allows buyers to give their opinion about the suppliers, contains reviews, the number of the advertisement, the name of the supplier etc. The other database contains information about the offers. These data are available to the public.
The defendant scans the data from these databases with a special programme and uses them on his own websites http://www.bettercom and http://www.bewerungspruefer.de.
According to the Berlin District Court both of plaintiff's databases are eligible for database protection because the data are systematically ordered and plaintiff has made considerable investments, which consist of the costs made for the construction and maintenance of the database. The defendant violates this database right by copying the data from the databases. It makes no difference that everyone has access to the data because the German law on database right §§ 87b UrhG does not protect secrecy interests but only investment interests. It also makes no difference that the defendant arranges the data in a different way (See also HIT BILANZ, High Court (Bundesgerichtshof), 21 juli 2005)

HIT BILANZ
Federal Supreme Court (Bundesgerichtshof), 21 July 2005

Plaintiff produces Airplay- and Music-sales-charts. A publisher used these charts to publish a book and CD-rom in which the hits were arranged according to several criteria. 
The court held that the exclusive right of the producer of a database to reproduce either the entire database or a qualitative or quantitative substantial part, can also be infringed by obtaining data from the database and putting them together again in a different way.
Database right as codified in § 87b.1 first sentence of the German Copyright Act (UrhG) does not protect the arrangement of the data, but the mere fact that the data are arranged in a different way does not mean that they no longer form a substantial part of the database.

Marktstudiën
High Court (Bundesgerichtshof), 21 april 2005

The plaintiff is a marketing research institute. The defendant publishes an IT-magazine. In several editions of this magazine the defendant publishes data, which are obtained from the marketing research institute, without its permission.
If data from a database, sold by the producer, are made available to the public in a magazine and is an essential act as in § 87b subsection 1 UrhG at issue , this amounts to infringement of a database right if the publication in the magazine occurs without the database producer's permission.
The first sale by the right holder of a copy of a part of the database amounts only to exhaustion of the right to control the further sales of this copy of the database. It does not exhaust the right to prevent the use of the content of this particular part of the database.

Urheberrechtsschutz von HTML-Quelltext 
Court of Appeal (Oberlandesgericht), Frankfurt, 22 maart 2005

A website is not a computer programme within the meaning of copyright law. 
The plaintiff runs a website with job advertisements. The defendant places quite similar advertisements on his own Internet platform. The plaintiff believes these advertisements to be copies of her website. 
The fact that a website consists of texts, graphics, logos and designs is neither enough for copyright protection, nor for protection as a computer programme in the meaning of §§ 2 paragraph 1 Nr. 1, 69a ff UrhG, nor for protection as a database in the meaning of § 4 paragraph 2 UrhG or §§ 87 a ff UrhG.
The appearance of the website must be such that it leaves no room for a personal vision emanating fromthe author.
Only copying of an essential part of a database is prohibited. Several advertisements of a website do not form an essential part of the website. The elements of a database are essential when they form a certain structure, i.e. when they are more then individual elements.

Book of poetry
Landgericht (District Court) Mannheim, 23 January 2004
GRUR-RR 2004 Heft 7, ZUM-RD 2004, 547

The plaintiff has compiled poetry into an anthology titiled “Klassikerwortschatz” which consist of poems dating from 1720 until 1933. The selection of texts was made as follows: from approximately 3000 anthologies, 14 were chosen. Together with a composition of 50 poems, these anthologies contained app. 20000 poems. Only the poems that featured in at least three of the anthologies were selected for “Klassikerwortschatz”.
The defendant had published a CD-ROM containing an anthology of poems. 90% of the poems on this CD-ROM corresponded to the poems included in “Klassikerwortschatz”.
The court held that the plaintiff's selection of poems is a collection and a database protected by copyright law, as the selection and arrangement of the poems make the list a personal creation of the author.
The compilation of poems is also a database within the meaning of §§ 87 aff. UrhG. The plaintiff had invested substantially in producing the compilation, and the poems were systematically and methodically arranged.
By copying a substantial part of the poems, the defendant had infringed plaintiffs copyright and database right on the anthology.

'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.

E-mailadressdatenbank
Landgericht (District Court), 23 April 2003, 12 0 157/02
ZUM, 2/2004, 147-148

The plaintiff runs a website on which interpreters and translators can register their names, addresses, languages and e-mail addresses, in order to acquire orders.
The defendant operates a website which helps companies search for employees.
The court held that the defendant had copied the database with e-mail addresses, because the defendant has used these e-mail addresses to send out advertising e-mails. Thus the defendant had infringed plaintiff's database right.

Nutzung von Datenbanken
Landgericht (District Court), 30 October 2002, AZ: 6 U 123/02

The producer of a database is he who invests in the drawing up of the database, even if the content of the database has been obtained from someone else.
To prove the illegal use of a database it is not enough to demonstrate the similarities resulting from two random maintenance mistakes in the data. Extensive factual material is necessary to prove similarities between the databases and the illegal use of a substantial part of a database.

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 Ltd. v Organismos Prognostikon Agonon Podosfairou (OPAP)
ECJ-C-444/02, 9 November 2004

This reference for a preliminary ruling concerns the interpretation of the provisions of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases.
The reference was made in the course of the proceedings brought by Fixtures Marketing Limited (Fixtures) against Organismos Prognostikon Agonon Pododfairou (OPAP). The litigation arose over the use by OPAP, for the purpose of organizing betting games, of information taken from the fixture lists for the English and Scottish football leagues.

In the light of the problems of interpretation of the directive, the Monomeles Protodikio Athinon decided to stay proceedings and refer the following questions to the Court for a preliminary ruling:

1. What is the definition of database and what is the scope of Directive 96/9/EC and in particular Article 7 thereof which concerns the sui generis right?

2. In the light of the definition of the scope of the directive, do lists of football fixtures enjoy protection as databases over which there is a sui generis right in favour of the maker and under what conditions?

3. How exactly is the database right infringed and is it protected in the event of rearrangement of the contents of the database?

See Case Law from the European Court of Justice

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:

1. The concept of databases and the scope of Directive 96/9 EC and in particular Article 7 thereof.

2. 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.

3. How exactly the database is infringed and whether it is protected in regard to rearrangement of the contents of the database.

See: ECJ-C-444/02, 9 November 2004

Iceland [top]

Although Iceland is not a Member State of the European Union, it is under an obligation pursuant to the EEA Agreement to implement directives in the field of copyright. The database right has been implemented in art. 50 of the Icelandic Copyright Act. 

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 yet 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.

New (updated: 07-08-2006) The Public Prosecutor v. A.B. et al.
Court of Milan, sec. III, 9 August 2004, n. 5407 (in Riv. Pen., 2005, p.
59)
[Abstract by Giorgio Spedicato, CIRSFID – University of Bologna]T

A.B. was prosecuted for the unauthorised extraction and re-utilization of a substantial part of a database containing the Italian school regulations. The defendant had used data and other protected materials in order to build a new database to be distributed on a cd-rom together with a well-known Italian newspaper. The Court, holding A.B. responsible for infringement of the criminal provision set to protect the maker of a database against the unauthorised extraction and re-utilization of a substantial part of the database, held that it is nonetheless lawful to repeatly extract and re-utilize non-substantial parts of a database even though this leads to acquiring the whole or a substantial part or of the database, on condition that these operations are carried out in the course of normal consultation of the database, and without unreasonable prejudice to its producer. These operations are infringing only if they exceed the operational limits of the data collection, or if they cause damage to the producer of the database, as in the case of repeated extraction and re-utilization for commercial uses and for the purpose of unfairly competing with the producer’s products.

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.

New (updated:07-08-2006) Zoekallehuizen.nl v. NVM
4 July 2006 – Court of Appeal (Gerechtshof) Arnhem

The Court of Appeal upheld the decision of the District Court, ruling that the websites of the individual real estate agents did not show substantial investment. 
The investments in obtaining, verifying or presenting the data were made in the course of the main activities of the agents. There were no substantial investments in creating a database. The websites of the real estate agents are therefore not protected by database right. 

 [See decision of which appeal: District Court 
 (Arrondissementsrechtbank) Arnhem, 16 March 2006]

Zoekallehuizen.nl v. NVM 
District Court (Arrondissementsrechtbank) Arnhem, 16 March 2006
(Abstract by Dirk Visser (Klos, Morel, Vos en Schaap)

Zoekallehuizen.nl (”Searchforallhouses.nl”; ZAH) is a dedicated search engine that performs daily searches of houses offered for sale on the websites of real estate agents in The Netherlands. It then places the search results on its websites www.zoekallehuizen.nl and www.zah.nl in the form of deeplinks.
Two real estate agents and the Dutch Association of Real Estate Agents (NVM) sought an injunction against ZAH on the basis of database right, copyright and unlawful competition. The President of the District Court of Arnhem denied the injunction and held that the websites of the real estate agents did not show substantial investment and were therefore not protected by the database right. The court also ruled that deep linking is permitted, and that the texts accompanying the deep links were allowed under the quotation right, a statutory limitation under Dutch copyright law. The court’s decision is largely based on the British Horse Racing Board decision of the ECJ. Reference is also made to the German Paperboy-decision of the Bundesgerichtshof.

The result seems comparable to the decision of a Danish Court of 24 February 2006.

30 November 2005 – District Court (Rechtbank) Zutphen

A database which only contains names and addresses of farmers, as well as more specific information about the company, is merely a collection of facts. The structure and arrangement do not express a personal vision of the author. Therefore the database is not protected by copyright law.
However, the database in question is to be considered a 'database' protected by the Dutch Database Act. The fact that the claimant regularly updates the database amounts to a substantial investment in the verification of the database.
In Dutch copyright law, the burden of proof falls upon the other defendant. The District Court Zutphen does not reverse the burden of proof for database law in this case.

Technos v. [X]
15 September 2005 – Court of Appeal (Gerechtshof) Amsterdam

Technos is a small telecom company which has entered into a contract with ICC, obliging that Technos to supply customers to ICC. [X] has sent an advertising letter, using the customer database from ICC containing the customers originating from Technos.
It is unclear how [X] obtained this database. Technos alleges that [X] has acted unlawfully against Technos by using a customer database that belongs to a direct competitor (Technos) and which has been obtained illegally.
Alternatively, Technos alleges that [X] has infringed the database right which Technos has on the customer database.
The court held that from the evidence produced it cannot be said that the part of the customer database from ICC which originates from Technos still belongs to Technos.
Now that it appeared that the part of the ICC database originating from Technos no longer belongs to Technos, Technos cannot invoke a database right.
Even if Technos had obtained a database right on the customer database before this was transported to the ICC database, it is unclear how this right could still apply to the whole
of the data originating from Technos in the ICC database. Even if the data originating from Technos formed a separate database in the customer database from ICC, the court cannot see how Technos could be considered entitled to the database.
Finally, there is no reason to assume that Technos would be co-title holder to the ICC database.

Quote Media and MTV v. SBS
16 June 2005 and 28 July 2005 – District Court (Voorzieningenrechter) Amsterdam

Quote Media and MTV publish television programme listings of the TV-channels from SBS (SBS 6, Net 5 and Veronica) in a magazine (IN). These programme listings have been taken from the magazines TV Satellite and TV Film. TV Satellite and TV Film obtain these listings directly and with permission from SBS.
Defendants have argued that the protection for non-original writings within the meaning of art. 10 subsection 1 under 1 of the Dutch Copyright Act has come to an end with the implementation of the Database Directive, because art 3.3 of the Directive determines that ' no other criteria shall be applied to determine their eligibility for that protection.' Therefore art. 71w of the Dutch Media Act, which grants protection to programme listings protected by copyright against making available to the public and copying, should not be applicable, because there is no copyright on the programme listings.
This defence cannot apply. Even if the Database Directive should not correctly be implemented in Dutch law, this cannot lead to the interpretation that the protection for non-original writings has come to an end. Art. 71w of the Media Act grants copyright protection to programme listings of commercial networks, and even an interpretation in accordance with the Directive cannot declare national legislation inoperative. Therefore SBS can call upon copyright protection for non-original writings.
SBS is allowed to refuse a license to Quote Media and MTV because IN is not a new product and SBS has the right to protect its economic interest in its own magazine 'Veronica Magazine'.

GFK and Stichting Nederlandse top 40 v. Van Oeffelen
30 June 2005 – District Court (Voorzieningenrechter) Amsterdam

GFK and Stichting Nederlandse top 40 collect and publish sale- and 'airplay' data about e.g. cd-singles, cd-albums. With these data they create hit lists, such as the Mega Top 50 and Album top 50.
Van Oeffelen has published these hit lists on his website http://www.popdossier.nl.
There is no doubt as to the fact Van Oeffelen does not have permission from GFK c.s. to publish the hit lists. GFK c.s. can – as the producer of the lists - legally oppose the use of the hit lists. The defendant's argument that the hit lists are not protected by copyright law because they do not concern (economic) news cannot apply.
Also the argument that the website is merely a hobby site cannot apply, because the data are accessible to a broader public. Even though people currently have to log on with a password, this is no guarantee that the lists are not accessible to a broader public.

ANP - Novum
21 July 2005 – Court of Appeal (Gerechtshof) Amsterdam
[See decision of which appeal: 11 November 2004, District Court (Voorzieningenrechter) Amsterdam]

Unlike the decision of the District Court, the Court of Appeal held that it is implausible that Novum has extracted news items from the ANP news server. The arguments of both parties require a more detailed examination of the facts.

Autonet - Promasy
27 December 2004 – District Court (Voorzieningenrechter) Arnhem

Autonet and Promasy both offer a computer programme designed for the car dismantlement branch, which can be used for e.g. registration of cars in stock and debtors. Autonet's programme is named Automate, Promasy's programme is named
Promasy. The Court rules that Automate is a work that can be protected by copyright law, since art. 1 subsection 3 of the Directive 91/250/EG - implemented in The Netherlands in art. 10 subsection 1 under 12 Dutch Copyright Act 1912 - determines that a computer programme can be protected when it is original and expresses a personal vision of the maker. Further research is necessary to determine whether or not Promasy violates the copyright of Autonet on Automate.
Furthermore, Autonet is of the opinion that Promasy violates its database right on the lists with data. Promasy does not dispute that it takes these lists from Automate for former clients of Autonet. According to the District Court the lists with e.g. car units and unit codes are systematically ordered data and Autonet has invested substantially. With reference to BGB / William Hill the Court held that the investment has been made in the development of the systems for storage and use of existing elements.
Promasy therefore violates the database right of Autonet and can no longer take the lists from Automate to use them in its own programme.

ANP - Novum
11 November 2004 – District Court (Voorzieningenrechter) Amsterdam
[See for appeal: 21 July 2005 – Court of Appeal (Gerechtshof) Amsterdam]
IER , 1-2005, . pp.27-34, m.nt. K.J. Koelman

Both ANP and Novum are Dutch press agencies. ANP provides news items trough a web based database to which their subscribers need to log-on with a username and password. Novum had accessed the ANP database without permission, and extracted news items on a regular basis.
According to the Amsterdam District Court the ANP database is to be regarded as a database protected under the Dutch Database Act, since ANP had systematically arranged the data by selecting and arranging news articles, and had invested substantially in terms of employment costs.
Novum acted unlawfully against ANP, while it circumvented technical appliances in the meaning of the Dutch Database Act by using an illegally obtained username and password to obtain access to the ANP database and was therefore held liable for damages.

NL-info-CD
18 August 2004 – District Court (Rechtbank) Almelo

Topware has created a CD-rom (the 'NL-info-CD') containing names, addresses, places of residence and telephone numbers. These data have been taken from the phonebook (De Telefoongids) created by KPN Telecom B.V. According to the Court, German law is applicable, because Topware has produced and sold the CD in Germany.
According to German law as valid in 1996, unauthorised copying of data from phonebooks cannot constitute a tort against the creator of these phonebooks.
According to German law as valid in 1996, offering copies of data taken from phonebooks unauthorised for sale can under certain circumstances constitute a tort against the creator of these phonebooks, if it violates § 1 Gesetz gegen den unlauteren Wettbewerb (UGW).
According to German jurisprudence § 1 UGW can be violated if advantage is taken from the efforts of others in the course of trade and for reasons of competition.
The Court held that Topware has taken advantage from the efforts KPN Telecom B.V. has made in creating De Telefoongids. Since this happened in the course of trade and for reasons of competition Topware has acted unlawfully against KPN Telecom B.V.
The Court also examined how these questions should be answered considering the Database Directive. The Directive has been implemented in the Urheberrechtgesetz (UrhG) on 1 January 1998. This legislation protects databases created after 1 January 1983. However, databases created between 1 January 1993 and 1 January 1998 are protected from 1 January 1998 onwards. Topware has not copied data from De Telefoongids after 1 January 1998.
The Court concludes that the selling of the Nl-info-CD by Topware in 1996, was unlawful against KPN Telecom B.V. according to the UWG. From 1 January 1998 Topware has acted unlawfully against KPN Telecom B.V. by offering the NL-info-CD for sale in Germany. The unlawfulness is based on § 137 jº § 87a and following UrhG from that date on.

NationaleVacaturebank.nl - NVM
21 July 2004 – District Court (Voorzieningenrechter) The Hague

Although a client file is at stake in this procedure, the District Court in The Hague does not resolve the case on the basis of database law. Following XS4ALL , the court concludes that NationaleVacaturebank.nl has an exclusive right of property on the client file, and can therefore oppose infringement of this exclusive right by NVM.

Many commentators (e.g. D. van Engelen in Computerrecht 2005-6, p. 34-36 and K.J. Koelman in AMI 2004 , p. 222-224) disagree with this decision and are of the opinion that the Court should have resolved this case on the basis of database law.

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.

Gratiz.nl
Court of Appeal (Gerechtshof) Leeuwarden, 23 July 2003
M.NT. K. GILHUIS, JAVI 2003-5, P. 189-191

Apart from trade mark law and the use of meta tags, database law was the subject of this decision about the website http://www.gratiz.nl . The court held that the plaintiff had failed to prove that there had been a substantial investment.
Moreover, because the plaintiff used information from other websites to create and maintain his own website, his own website lacks 'exclusivity'.
This is a remarkable point, as Gilhuis indicates in his note, because for sui generis database protection it is not necessary for the database to be 'original' or 'exclusive'.

NOS v. De Telegraaf
6 June 2003 – Netherlands Supreme Court (Hoge Raad)
[see decision of which appeal: Court of Appeal (Gerechtshof) The Hague, 30 january 2001]

The Surpreme Court based its decision purely on competition law and left the question whether or not the data (program listings) were to be protected by laws of intellectual property aside. Following Magill , the Supreme Court confirmed the decision of the Court of Appeal that the NOS was indeed abusing its dominant position by refusing to license the programme listings under reasonable terms. Since this was held to constitute anti-competitive behaviour, it was not necessary to investigate whether or not the data were protected by laws of intellectual property.

Harmony v. De Ruijter
4 April 2003 – District Court (Voorzieningenrechter) Arnhem
Computerrecht 2003/5, pp. 302-305

Harmony opposes the use of a database by De Ruijter. Harmony is the lawful owner of the database, since the first owner, De Hakenberg, has legally transferred the database to Harmony. De Ruijter claims to have bought the database in good faith from Bees B.V.
The question arises if De Ruijter can refer to article 3:88 of the Dutch Civil Code. From consideration 58 of the Database Directive follows that the national laws pertaining to the delivery of goods and services in the database sector can apply in addition to the protectiongiven by the Directive. If De Ruijter has received the database in good faith from Bees B.V., Harmony cannot oppose the use of this database by De Ruijter.
However, since De Ruijter has received the database from an unauthorised entity, and it is unclear how Bees B.V. seized possession of the database, the protection of 3:88 cannot apply to De Ruijter.

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.

[See: Supreme Court]

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)

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.

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’)
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.

IMS Health v. PharmaVision
21 April 2000 – President District Court (Arrondissementsrechtbank) Haarlem
IER , 2000-4, pp. 194-198

IMS Health and PharmaVision provide (commercial) information services for the pharmaceutical industry. IMS Health has created 'Pharbase', a database with information about e.g. prescriptional behaviour of Dutch doctors.
In the case before the District Court, the question arises whether a database can be protected by copyright law. The Court held that a collection of facts is not 'original' as required in the Dutch Copyright Act 1912, and that the structure and arrangement do not express a personal vision of the author. After all, the structure is functionally determined.
However, the databases in question are to be considered a 'database' in the meaning of the Dutch Database Act. Therefore, PharmaVision, in claiming and re-using a quantitative substantial part of the database, violates the database right of IMS Health.
The President of the District Court rejected the defence of abuse of a dominant position, as it was not sufficiently clear that PharmaVision would need a license from IMS Health to be able to operate in the market.

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.

NOS v. De Telegraaf
5 January 1999 – President District Court (Arrondisementsrechtbank) The Hague
[See appeal: Court of Appeal (Gerechtshof) The Hague, 30 January 2001 and Netherlands Supreme Court (Hoge Raad) 6 juni 2003]
Informatierecht/AMI 1999, p.22 ; Mediaforum 1999-13 m.nt. P.B. Hugenholtz .

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 programme listings for publication in its weekly television guide.
The president of the court held that, unlike Van Dale/Romme, programme listings are not granted a full copyright, rather a limited copyright protection in the form of non-original writings, which De Telegraaf had infringed by copying the programme listings. As, at that time, the Database Directive had not yet been implemented, NOS was not entitled to invoke its provisions.

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.

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. Svenska Spel AB
ECJ – C-338/02, 9 November 2004

This reference for a preliminary ruling concerns the interpretation of the provisions of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases. The reference was made in the course of proceedings brought by Fixtures Marketing Limited (Fixtures) against Svenska Spel AB (Svenska Spel). The litigation arose over the use by Svenska Spel, for the purpose of organizing betting games, of information taken from the fixtures lists for the English and Scottish football leagues.

The Hogsta domstolen decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:

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?

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?

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?

5) How should the terms 'normal exploitation" and 'unreasonably prejudice' in Article 7(5) be interpreted?

See Case Law from the European Court of Justice

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.

See: ECJ - C-338/02, 9 November 2004

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.

Attheraces (UK) Ltd. V. The British Horseracing Board Ltd
High Court of Justice Chancery Division, 15 July 2005

The facts are quite similar to those in BHB v. VCI. The court held that it is true that under the PA agreement PA is not authorized to supply anyone with whom BHB does not have a direct agreement (license). Accordingly it is not disputed that BHB has the contractual right to prevent further supply, the question is whether it can exercise that right without abusing its dominant position and that depends on whether it is objectively justified in requiring further payment from ATR. It cannot justify such a demand as a license to use its intellectual property rights because it has no database right and, as appeared to be common ground, copyright does not arise except in a very tangential form.

British Horseracing Board Ltd. V. William Hill Organisation Ltd.
Court of Appeal, England and Wales, 28 June and 13 July 2005

This is the final determination of the appeal by William Hill from a decision of Laddie J. of 9 February 2001. With regard to the ECJ judgment, the court held that so far as BHB's database consisted of the officially identified names of riders and runners, it was not within the ambit of sui generis protection of Art. 7(1) of the Directive.
A distinction could be drawn between the information that was published concerning the initial list of horses intending to run in a particular race and the final verified list of those who would actually be running. Once BHB verified that information, its nature changed and it became something different from a mere database of existing material.
The database of lists that was published with BHB's verification was one that did not consist of existing independent material as it had been given BHB's official stamp of approval.
The ECJ had drawn a distinction between the “obtaining and verification” of material and the “creation” of material. Investment in the selection of the horses entered for and eligible to run in the races constituted the creation of material, which included checking. The resources used in creating the lists had therefore not been used in obtaining or verifying the contents of the database but in creating the content. Those lists were thus not a database that was protected under Art. 7(1).

BHB Enterprises plc v. Victor Chandler (International) Limited
High Court of Justice Chancery Division, 27 May 2005

This case came on for trial after the ECJ handed down the judgment in “BHB / William Hill”, but before the English Court of Appeal had applied the ECJ reference to the facts of the earlier case.
BHB contracted with PA to supply the database on terms that the latter could license its customers to use it. PA in turn entered into licenses with users, including bookmakers like Victor Chandler (VCI), which allowed them to use the sports data it supplied, including the database.
VCI was one of the many bookmakers that believed the ECJ judgment had destroyed the IP rights underlying the BHB agreements. It had therefore stopped paying the charge under the BHB/VCI agreement, which it said was void. BHB therefore began proceedings seeking damages for breach of copyright and threatening to instruct PA to stop supplying VCI with the data.
The court held that the right to refuse to provide the data was separate from the requirement that there be copyright or other arrangements between the customer and the licensor. PA, being a mere middleman in the transfer of the data from the owner to the customer, was not obliged to supply the latter if the former directly prohibited this.
VCI was entitled to attack BHB's claim to a database right, copyright or any other right it might assert. If PA refused to allow VCI to use the pre-race data, it would not breach the terms of the PA/VCI license. It followed that VCI had no cause of action against it and BHB could not be liable for procuring breach of contract or unlawful interference with trade.

The British Horseracing Board Ltd and Others v. William Hill Organization Ltd.
ECJ, nr. C-203/02, 9 November 2004

This reference for a preliminary ruling concerns the interpretation of Article 7 and Article 10(3) of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases. The reference was made in the course of proceedings brought by The British Horseracing Board Ltd, the Jockey Club and Weatherbys Group Ltd (the BHB and Others) against William Hill Organization Ltd (William Hill). The litigation arose over the use by William Hill, for the purpose of organizing betting on horse racing, of information taken from the BHB database.

In the light of the problems of interpretation of the directive, the Court of Appeal decided to stay proceedings and refer the following questions to the Court of Justice for a preliminary ruling:

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)?

See Case Law from the European Court of Justice

Jobsearch Ltd v. Relational Designers Ltd
Also known as: Jobserve Ltd v. Skillsite Ltd
Chancery Division, 27 February 2004

Jobsearch, an employment consultant company, provided CVs to employment agencies and potential employers by means of a website database. CVs were provided to subscribers on terms which contained restrictions on the use of the information in the CVs and the CVs themselves. Relational Designers, which had been a subscriber to Jobsearch service, had passed its stock of CVs, including CVs which had originated from the Jobsearch database, to Skillsite. Skillsite then used these CVs to set up its own venture. It was acknowledged that Skillsite's use of CVs from the Jobsearch database and the use of information given therein to invite candidates to resubmit updated CVs breached Jobsearch's rights in the database. Jobsearch obtained an interim injunction, and now stated that Skillsite and Relational Designers are in contempt of court as they had acted in breach of the undertakings. The court held that any ambiguity in the undertaking should be resolved in favour of the respondents. However, the meaning of the undertaking was reasonably clear. Accordingly, Skillsite and Relational Designers were in contempt of court.

Royal Mail Group Plc. v. i-CD Publishing (UK) Limited
Chancery Division, 13 February 2004

The High Court Chancery Division handed down a judgment on a preliminary issue in a claim by the Royal Mail Group against I-CD Publishing alleging infringement of copyright and infringement of database rights relating to the electronic database “UK-Info Directory”. The Court held that I-CD had a license defense to the Royal Mail's claim as the validation of its existing mailing list by comparison and correction against Royal Mail's “postcode address file” database was covered by the end user license.

[See also: High Court of Justice Chancery Division, 22 August 2003]

Royal Mail Group Plc v. i-CD Publishing (UK) Limited
High Court of Justice Chancery Division, 22 August 2003

Royal Mail Group Plc alleges that the defendant, I-CD Publishing Ltd had infringed its copyright and database rights and in the course of engaging in the production and publication of successive versions of an electronic database (UK-Info Directory). Issues of interpretation arose with regard to a clause in the End User License. These issues had to be resolved with a full understanding of the matters that need to be classified either as authorized or unauthorized in terms of contractual provisions. The court declines to rule on the interpretation of the proviso at this stage of the proceedings.

[See for the judgment on the preliminary issue: Chancery Division, 13 February 2004]

Sietech Hearing Limited v. Russell Borland, James Eley, Digital Hearing (UK) Limited
Outer House, Court of Session, Scotland, 19 February 2003

Sietech Hearing Ltd.  supplies hearing aids. R. Borland and J. Eley were employed by Sietech Hearing Ltd. until March 1999, when they resigned. Borland and Eley became shareholders and directors of Digital, which carried on business in competition with Sietech. Damages were sought for e.g. breach of duties of good faith and confidence implied in first and second defenders' contracts of employment and for infringement of copyright and database rights.
With regard to the database infringement the court held that the plaintiff's database rights in respect of the CNP cards, cancelled audiogram cards, Amplivox Ultratone audiogram cards and the database downloaded from a laptop (these being among the categories of documents forming the subject matter of the action) were infringed by the defenders' extraction of substantial parts of their contents. There was however insufficient evidence to justify a finding of infringement of database rights of re-utilization in respect of CNP cards or cancelled audiograms.
The first and third defenders were jointly and individually liable to the plaintiff for damages in respect of any loss and damage which the plaintiff may prove to have suffered as a result of infringement of copyright and database rights.

British Horseracing Board (BHB) et al. v. William Hill Organization Ltd.
Court of Appeal, 31 July 2001
[see also 9 February 2001 and ECJ, nr. C-203/02, 9 November 2004]

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 .........).

British Horseracing Board (BHB) v. William Hill Organization Ltd.
High Court of Justice, 9 February 2001
[see also 31 July 2001 and ECJ, nr. C-203/02, 9 November 2004]

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.

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.

European Court of Justice Case Law [top]

The 9^th of November 2004, the European Court of Justice handed down four judgments concerning the interpretation of Article 7 and Article 10(3) of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases.

The British Horseracing Board Ltd and Others v. William Hill Organization Ltd.
ECJ, nr. C-203/02, 9 November 2004

This reference for a preliminary ruling concerns the interpretation of Article 7 and Article 10(3) of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases. The reference was made in the course of proceedings brought by The British Horseracing Board Ltd, the Jockey Club and Weatherbys Group Ltd (the BHB and Others) against William Hill Organization Ltd (William Hill). The litigation arose over the use by William Hill, for the purpose of organizing betting on horse racing, of information taken from the BHB database.

In the light of the problems of interpretation of the directive, the Court of Appeal decided to stay proceedings and refer the following questions to the Court of Justice for a preliminary ruling:

(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)?

The second and third questions should be answered as follows:

-          The expression ‘investment in…the obtaining…of the contents’ of a database in Article 7(1) of the directive must be understood to refer to the resources used to seek out existing independent materials and collect them in the database. It does not cover the resources used for the creation of materials which make up the contents of a database.

-          The expression ‘investment in…the…verification…of the contents’ of a database in Article 7(1) of the directive must be understood to refer to the resources used, with a view to ensuring the reliability of the information contained in that databse, to monitor the accuracy of the materials collected when the database was created and during its operation. The resources used for verification during the stage of creation of materials which are subsequently collected in a database do not fall within that definition.

-          The resources used to draw up a list of horses in a race and to carry out checks in that connection do not constitute investment in the obtaining and verification of the contents of the database in which that list appears.

The seventh, eighth and ninth questions should be answered as follows:

-          The terms ‘extraction’ and ‘re-utilization’ in Article 7 of the directive must be interpreted as referring to any unauthorized act of appropriation and distribution to the public of the whole or a part of the contents of a database. Those terms do not imply direct access to the database concerned.

-          The fact that the contents of a database were made accessible to the public by its maker or with his consent does not affect the right of the maker to prevent acts of extraction and/or re-utilization of the whole or a substantial part of the contents of a database.

Considering the circumstances, there is no need to reply to the first question referred. 

The fourth, fifth and sixth questions should be answered as follows:

-          The expression substantial part, evaluated…quantitatively, of the contents of a database in Article 7 of the directive refers to the volume of data extracted from the database and/or re-utilized and must be assessed in relation to the total volume of the contents of the database.

-          The expression substantial part, evaluated qualitatively…of the contents of a database refers to the scale of the investment in the obtaining, verification or presentation of the contents of the subject of the act of extraction and/or re-utilization, regardless of whether that subject represents a quantitatively substantial part of the general contents of the protected database

-          Any part which does not fulfill the definition of a substantial part, evaluated both quantitatively and qualitatively, falls within the definition of an insubstantial part of the contents of a database.

The answer to the 10th question must be that the prohibition laid down by Article 7(5) of the directive refers to unauthorized acts of extraction or re-utilization the cumulative effect of which is to reconstitute and/or make available to the public, without the authorization of the maker of the database, the whole or a substantial part of the contents of that database and thereby seriously prejudice the investment by the maker.

Against that background, it is not necessary to reply to the 11th question referred.

Fixtures Marketing Ltd v. Oy Veikkaus AB
ECJ – C-46/02, 9 November 2004

This reference for a preliminary ruling concerns the interpretation of the provisions of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases. The reference was made in the course of proceedings brought by Fixtures Marketing Limited (Fixtures) against Oy Veikkaus Ab (Veikkaus). The litigation arose over the use by Veikkaus, for the purpose of organizing betting games, of information taken from the fixtures lists for the English football leagues.

In the light of the uncertainty as to whether the fixture list at issue is a protected database, and if it is, as to the type of action which constitutes an infringement of the protection provided for by the directive, the Vantaan karajaoikeus decided to stay proceedings and refer the following questions to the Court for a preliminary ruling:

(1) May the requirement in Article 7(1) of the directive for a link between the investment and the making of the database be interpreted in the sense that the obtaining referred to in Article 7(1) and the investment directed at it refers, in the present case, to investment which is directed at the determination of the dates of the matches and the match pairings themselves and, when the criteria for granting protection are appraised, does the drawing up of the fixture list include investment which is not relevant?

(2) Is the object of the directive to provide protection in such a way that persons other than the authors of the fixture list may not, without authorization, use the data in that fixture list for betting or other commercial purposes?

(3) For the purposes of the directive, does the use by Veikkaus relate to a substantial part, evaluated qualitatively and/or quantitatively, of the database, having regard to the fact that, of the data in the fixture list, on each occasion only data necessary for one week is used in the weekly pools coupons, and the fact that the data relating to the matches is obtained and verified from sources other than the maker of the database continuously throughout the season?

The answer to the first question should be that the expressions investment in…the…obtaining…of the contents of a database as defined in Article 7(1) of the directive must be understood to refer to the resources used to seek out existing independent materials and collect them in the database. It does not cover the resources used for the creation of materials which make up the contents of a database. In the context of drawing up a fixture list for the purpose of organizing football league fixtures, therefore, it does not cover the resources used to establish the dates, times and the team pairings for the various matches in the league.

In the light of the foregoing, there is no need to reply to the other questions referred.

Fixtures Marketing Ltd. v Organismos Prognostikon Agonon Podosfairou (OPAP)
ECJ-C-444/02, 9 November 2004

This reference for a preliminary ruling concerns the interpretation of the provisions of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases.

The reference was made in the course of the proceedings brought by Fixtures Marketing Limited (Fixtures) against Organismos Prognostikon Agonon Pododfairou (OPAP). The litigation arose over the use by OPAP, for the purpose of organizing betting games, of information taken from the fixture lists for the English and Scottish football leagues.

In the light of the problems of interpretation of the directive, the Monomeles Protodikio Athinon decided to stay proceedings and refer the following questions to the Court for a preliminary ruling:

(1) What is the definition of database and what is the scope of Directive 96/9/EC and in particular Article 7 thereof which concerns the sui generis right?

(2) In the light of the definition of the scope of the directive, do lists of football fixtures enjoy protection as databases over which there is a sui generis right in favour of the maker and under what conditions?

(3) How exactly is the database right infringed and is it protected in the event of rearrangement of the contents of the database?

The first two questions should be answered as follows:

-                                  The term database as defined in Article 1(2) of the directive refers to any collection of works, data or other materials, separable from one another without the value of their contents being affected, including a method or system of some sort for the retrieval of each of its constituent materials

-                                  A fixture list for a football league such as that at issue in the case in the main proceedings constitutes a database within the meaning of Article 1(2) of the directive.

-                                  The expression investment in…the obtaining…of the contents of a database as defined in Article 7(1) of the directive must be understood to refer to the resources used to seek out existing independent materials and collect them in the database. It does not cover the resources used for the creation of materials which make up the contents of a database. In the context of drawing op a fixture list for the purpose of organizing football league fixtures, therefore, it does not cover the resources used to establish the dates, times and the team pairings for the various matches in the league.

In the light of the foregoing, there is no need to reply to the third question referred.

Fixtures Marketing Ltd v. Svenska Spel AB
ECJ – C-338/02, 9 November 2004

This reference for a preliminary ruling concerns the interpretation of the provisions of Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases. The reference was made in the course of proceedings brought by Fixtures Marketing Limited (Fixtures) against Oy Veikkaus Ab (Veikkaus). The litigation arose over the use by Veikkaus, for the purpose of organizing betting games, of information taken from the fixtures lists for the English football leagues.

In the light of the uncertainty as to whether the fixture list at issue is a protected database, and if it is, as to the type of action which constitutes an infringement of the protection provided for by the directive, the Vantaan karajaoikeus decided to stay proceedings and refer the following questions to the Court for a preliminary ruling:

1. May the requirement in Article 7(1) of the directive for a link between the investment and the making of the database be interpreted in the sense that the obtaining referred to in Article 7(1) and the investment directed at it refers, in the present case, to investment which is directed at the determination of the dates of the matches and the match pairings themselves and, when the criteria for granting protection are appraised, does the drawing up of the fixture list include investment which is not relevant?

2. Is the object of the directive to provide protection in such a way that persons other than the authors of the fixture list may not, without authorization, use the data in that fixture list for betting or other commercial purposes?

3. For the purposes of the directive, does the use by Veikkaus relate to a substantial part, evaluated qualitatively and/or quantitatively, of the database, having regard to the fact that, of the data in the fixture list, on each occasion only data necessary for one week is used in the weekly pools coupons, and the fact that the data relating to the matches is obtained and verified from sources other than the maker of the database continuously throughout the season?

The answer to the first question should be that the expressions investment in…the…obtaining…of the contents of a database as defined in Article 7(1) of the directive must be understood to refer to the resources used to seek out existing independent materials and collect them in the database. It does not cover the resources used for the creation of materials which make up the contents of a database. In the context of drawing up a fixture list for the purpose of organizing football league fixtures, therefore, it does not cover the resources used to establish the dates, times and the team pairings for the various matches in the league.

In the light of the foregoing, there is no need to reply to the other questions referred.

Publications regarding the directive [top]

• Chr.A. Aberdingk Thijm, Annotatie bij Vzngr. Rb. Arnhem 16 maart 2006 (Zoekallehuizen.nl / NVM), AMI 2006-3.
  
  
• F. Brison, De bescherming van databanken op de helling gezet?, e-sbj, 15/06, 15-08-2005, p. 27-30.
  
  
• P.B. Hugenholtz & M.J. Davison, Football fixtures, horseraces and spinoffs: the ECJ domesticates the database right, EIPR, 2005-3.
  
  
• K.J. Koelman, Annotatie bij Vzngr. Rb. Amsterdam 11 november 2004 (ANP / Novum), IER 2005, p. 27-34.
  
  
• P.B. Hugenholtz, Annotatie bij Europese Hof van Justitie 9 november 2004 (British Horseracing / William Hill),  AMI, 2005-1, p. 36-37.
  
  
• J.J.C. Kabel, Annotatie bij Vzngr. Rb. 's-Gravenhage 21 juli 2004 (Nationalevacaturebank.nl / CVBank), IER, 2004-6, p. 419-420.
  
  
• K.J. Koelman, Annotatie bij Vzngr. Rb. 's-Gravenhage 21 juli 2004 (Nationalevacaturebank.nl / CVBank), AMI 2004, p. 222-224.
  
  
• P.B. Hugenholtz, ‘Het Europese Databankenrecht. Acht jaar later - en nu?’, Auteurs & Media, 2004-5/6, p. 439-443.
  Acht jaar na de aanvaarding van de Europese Databankrichtlijn zijn de contouren van het nieuwe recht sui generis nog steeds onduidelijk. Kernbegrippen, zoals de definitie van 'databank' en de eis van 'substantiële investering', worden in de Europese rechtspraak en rechtsleer verschillend geduid. Conclusies over het nuttig effect van de richtlijn zijn vooralsnog niet te trekken.
  
  
• P.B. Hugenholtz, ‘Abuse of Database Right. Sole-source information banks under the EU Database Directive’, Paper presented at Conference 'Antitrust, Patent and Copyright', École des Mines/UC Berkeley, Paris, January 15-16, 2004.
  
  
• W. Steenbruggen & R.D. Chavannes, Annotatie bij BGH 17 juli 2003 I ZR 259/00 (Paperboy-arrest),  JAVI, 2003-6, p. 222-225.
  
  
• K.J. Koelman, Annotatie bij HR 6 juni 2003 (NOS / Telegraaf), AMI 2003, p. 157.
  
  
• A. Teune, 'Websites: databanken op het Internet?', mei 2003.
  
  
• P.B. Hugenholtz, ‘Program Schedules, Event Data and Telephone Subscriber Listings under the Database Directive - The ‘Spin-Off’ Doctrine in the Netherlands and elsewhere in Europe’, Paper presented at Eleventh Annual Conference on International IP Law & Policy, Fordham University School of Law, New York, 14-25 April 2003.
  Seven years after the adoption of the EC Database Directive, the contours of the new database right remain difficult to draw, and shrouded in controversy. One of many crucial questions soon to be addressed by the European Court of Justice concerns the 'substantial investment' test. The Directive requires that such investment be made in the 'obtaining, verification or presentation of the contents' of the database. Does this mean that the investment must be aimed at producing a database, or can data compilations that are generated as mere 'spin-offs' of other activities, such as program schedules and event data listings, also benefit from sui generis protection?
  
  
• S.R. Hagen, Annotatie bij Hof Leeuwarden 27 november 2002 (Wegener e.a. / Hunter Select), JAVI, 2003-1, p. 28-31.
  
  
• P.B. Hugenholtz, Annotatie bij Hof Leeuwarden 27 november 2002 (Wegener e.a. / Hunter Select), AMI 2003-2, p. 59-63.
  
  
• F.J. van Eeckhoutte, Annotatie bij Hof Leeuwarden 27 november 2002 (Wegener e.a./Hunter Select).
  
  
• W.E. Pors, Annotatie bij Vzng. Rb. Groningen 18 juli 2002 (Wegener / Hunter Select) en Rb. Amsterdam 4 september 2002 (Publishers v. Euroclip et.al.), JAVI, 2002-3, p. 99-101.
  
  
• K.J. Koelman, Annotatie bij Vzng. Rb. Groningen 18 juli 2002 (Wegener / Hunter Select), AMI 2002, p. 196-198
  
  
• P.B. Hugenholtz, ‘De spin-off theorie uitgesponnen’, AMI 2002-5, p. 161-166.
  De 'spin-off theorie', die leert dat er geen databankenrecht rust op feitenverzamelingen die als bijproduct tot stand komen, is door mythes omgeven. Mythe 1: het zou hier gaan om een uniek Nederlands hersenspinsel. Mythe 2: de Databankrichtlijn biedt voor deze theorie geen enkel aanknopingspunt. Mythe 3: de Hoge Raad zou er onlangs mee hebben afgerekend. In dit artikel wordt de spin-off theorie ontmythologiseerd, van onzuiverheden ontdaan, in een nieuw jasje gestoken en een grote toekomst voorspeld.
  
  
• B.J. Lenselink, Annotatie bij HR 22 maart 2002 (NVM / De Telegraaf), JAVI, 2002-1, p. 25-27
  
  
• P.B. Hugenholtz (with Stephen M. Maurer & Harlan J. Onsrud) ‘Europe’s Database Experiment’, Science, vol. 294 (26 October 2001), p. 789-790.
  
  
• P.B. Hugenholtz, 'Elektronische handel en intellectuele eigendom', WPNR, Themanummer E-commerce, nr. 6443, jrg. 132, 28 april 2001, p. 399-406.
  Overzicht van actuele problemen op het raakvlak van e-commerce en intellectuele eigendom. Centraal staat het auteursrecht, dat dankzij de Europese Auteursrechtrichtlijn een herzieningsoperatie te wachten staat. Tevens komt aan de orde het databankenrecht, dat wij eveneens aan een Europese richtlijn hebben te danken. Tenslotte wordt aandacht besteed aan het octrooirecht, dat op het terrein van de e-commerce een onverwachte (en door velen ongewenste) hoofdrol dreigt te gaan vervullen.
  
  
• P.B. Hugenholtz, 'The New Database Right: Early Case Law from Europe',  Paper presented at Ninth Annual Conference on International IP Law & Policy, Fordham University School of Law, New York, 19-20 April 2001.
  More than five years have passed since the European Database Directive was adopted on 11 March 1996. Implementation of the Directive into national law was completed in the 1997-2000 period. Since implementation at least 25 court decisions dealing with the new database right have been reported, mostly from courts in Germany, the Netherlands and France.
  
  
• M.M.M. van Eechoud, Annotatie bij Hof Den Haag 21 december 2000 (De Telegraaf / NVM) (vervolg op de NVM-zaak bij rechtbank Den Haag), gepubliceerd in Mediaforum 2001-3, nr. 11, p. 87-90.
  
  
• M.M.M. van Eechoud, Annotatie bij Pres. Rb. Den Haag 12 september 2000 (NVM / De Telegraaf), gepubliceerd in Mediaforum 2000-11/12, nr. 76, p. 395-398.
  Kritische bespreking van het vonnis in kort geding d.d. 12.10.2000 van de rechtbank Den Haag in de zaak NVM/De Telefgraaf.
  
  
• K.J. Koelman, Annotatie bij Rb. Rotterdam 22 augustus 2000 (Dagbladen / Eureka Internetdiensten), Informatierecht/AMI, 2000-10, p. 205-210.
  English translation of case also available.
  
  
• P.B. Hugenholtz, ‘Implementing the Database Directive’, in: Jan J.C. Kabel and Gerard J.H.M. Mom (eds.), Intellectual Property and Information Law, Essays in Honour of Herman Cohen Jehoram, The Hague/London/Boston: Kluwer Law International 1998, p. 183-200.
  
  
• P.B. Hugenholtz, Annotatie bij het besluit van 10 september 1998 van de Nederlandse Mededingingsautoriteit (NMa), Mediaforum 1998-10, p. 304-315.
  In dit besluit van de NMa werd het zgn. omroepbladenmonopolie ongeoorloofd geacht. De NMa stelde dat de NOS en HMG misbruik maken van hun machtspositie door te weigeren de programmagegevens ter beschikking te stellen aan derden.
  
  
• P.B. Hugenholtz, ‘Het wetsvoorstel implementatie databankrichtlijn’, IER 1998-6, p. 244-247.
  Op 20 juli 1998 is bij de Tweede Kamer ingediend een wetsvoorstel tot aanpassing van de Nederlandse wetgeving aan de Europese Databankrichtlijn. Het voorstel strekt tot invoering van een afzonderlijke wet (een nieuwe Wet bescherming producent van databanken), waarin het sui generis databankrecht zijn beslag zal krijgen. Daarnaast voorziet het voorstel in aanpassing van de Auteurswet 1912. In dit artikel worden de hoofdlijnen van het wetsvoorstel besproken.
  
  
• J.J.C. Kabel, Annotatie bij Pres. Rb. ‘s –Gravenhage 20 maart 1998 (Vermande – Bojkovski)
  
  
• P.B. Hugenholtz, ‘De Databankrichtlijn eindelijk aanvaard. Een zeer kritisch commentaar’,  Computerrecht 1996-4, p. 131-138.
  Kritische analyse van de Europese Databankrichtlijn. De Richtlijn biedt de producenten van databanken veel bescherming, maar houdt nauwelijks rekening met de belangen van concurrenten, intermediairs en eindgebruikers. Voor Nederland betekent het sui generis extractierecht, dat de kern van de Richtlijn vormt, waarschijnlijk het einde van de aloude geschriftenbescherming.
  

Updated 03.07.2012