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1. Introduction
More than five years have
passed since the European Database Directive was adopted on 11
March 1996. [1] The
Directive created a unique two-tier protection scheme of
electronic and non-electronic databases. Member States are
required to protect databases by copyright as intellectual
creations, and by introducing a right sui generis to
prevent unauthorised extraction or reutilization of the contents
of a database, the so-called 'database right'.
The deadline for implementation
of the Directive has expired on 1 January 1998. Only Germany,
Sweden, the United Kingdom and Austria have met this deadline.
[2] Most Member States
have completed the transposition process between 1998 and 2000.
[3]
Since the Directive has become
integrated into national intellectual property law in Europe,
national courts have handed down a host of interesting
decisions. This paper comprises a summary of early case law,
focusing on the new database right. By way of introduction and
background, the key concepts of the Directive in so far as they
relate to the database right will be introduced.
[4]
2. The Database Right: Key
Concepts
Notion of 'database'
The Directive 'concerns the
legal protection of databases in any form' (Article 1 § 1).
Unlike the original proposal, the Directive protects not only
electronic databases, but also databases in 'paper' form, such
as telephone directories, and hybrid databases using microfilm.
Article 1 § 2 defines the Directive's object of protection as 'a
collection of independent works, data or other materials
arranged in a systematic or methodical way and individually
accessible by electronic or other means.' Thus, a 'database' is
more than a mere collection of simple data. A collection of
works of authorship, such as an anthology, encyclopaedia or
multimedia CD, may also qualify as such. A database may even
consist of other 'materials', i.e. subject matter that is
neither work nor data, such as sound recordings, non-original
photographs, and other products protected by neighbouring
rights. The Explanatory Memorandum describes the contents of the
database as '“information” in the widest sense of that term.'
[5]
The individual elements
comprising a database must be 'independent' and 'individually
accessible by electronic or other means'. A collection of moving
images together constituting a movie (film) is not a 'database'.
Recital 17 expressly excludes 'a recording or an audio-visual,
cinematographic, literary or musical work as such'. Moreover,
the individual elements of the database must be 'arranged in a
systematic or methodical way'. However, according to Recital 21,
'it is not necessary for those materials to have been physically
stored in an organised manner'. It follows that a collection of
unorganised data fixed on a hard disk or other digital medium
would qualify as a database if combined with database management
software enabling retrieval of the data. Conversely, a diskette
with neatly arranged data, but without a searching algorithm,
does not constitute a database.
According to Recital 20, the
protection granted under the Directive also applies to 'the
materials necessary for the operation or consultation of certain
databases such as thesaurus and indexation systems'. The
Directive does not, however, protect the computer software
driving the database as such (Article 1 § 3). Computer programs
are protected independently by the European Software Directive
of 1991. [6]
Subject matter of database
right
The database right protects the
'sweat of the brow' of the database producer, i.e. the skill,
energy and money invested in the database. This investment must
be 'substantial'. Unfortunately, the Directive offers little
guidance as to the minimal amount of investment required. The
investment protected may be either 'qualitative' or
'quantitative'. A qualitative investment would, for instance,
result from employing the expertise of a professional, e.g. a
lexicographer selecting the key words for a dictionary. In
practice, most databases will probably result from a
quantitative investment, involving 'the deployment of financial
resources and/or the expanding of time, effort and energy'.
[7]
According to Article 7 § 1, the
substantial investment is to be made 'in either the obtaining,
verification or presentation of the contents' of the database.
The 'obtaining' obviously refers to the collection of data,
works or other materials comprising the database. 'Verification'
relates to the checking, correcting and updating of data already
existing in the database. 'Presentation' involves the retrieval
and communication of the compiled data, such as the
digitalisation of analogue files, the creation of a thesaurus or
the design of a user interface.
The Directive defines the owner
of the database right as the 'maker of a database' (Article 7
§ 1). Pursuant to Recital 41, the 'maker of a database is the
person who takes the initiative and the risk of investing';
subcontractors are excluded from the definition.
Scope of database right
The database right is defined
in Article 7 § 1 as a right 'to prevent extraction and/or
reutilization of the whole or of a substantial part, evaluated
qualitatively and/or quantitatively, of the contents of that
database.' Extraction is defined as 'the permanent or temporary
transfer of all or a substantial part of the contents of a
database to another medium by any means or in any form'. The
right pertains to the downloading, copying, printing, or any
other reproduction in whatever (permanent or temporary) form.
Reutilization is defined as
'any form of making available to the public all or a substantial
part of the contents of a database by the distribution of
copies, by renting, by on-line or other forms of transmission.'
Again, the Directive fails to define 'substantial'; according to
the Explanatory Memorandum 'no fixed limits can be placed in
this Directive as to the volume of material which can be used.'
[8]
Extraction and reutilization of
insubstantial parts are permitted, unless such acts are
committed in a 'repeated and systematic' manner and 'conflict
with a normal exploitation of that database or […] unreasonably
prejudice the legitimate interests of the maker of the database'
(Article 7 § 5). Thus, incidental browsing and piecemeal copying
from databases, even by unauthorised users, appear to be lawful.
Exemptions
The Directive allows for only
limited statutory exemptions in respect of the database right.
Article 9 leaves no room for many traditional limitations, such
as journalistic freedoms, quotation rights, library privileges
or reuse of government information. Apparently, the users'
freedom to extract and reutilize insubstantial parts of the
database was considered, by the European legislature, to be
sufficient.
Duration of database right
The term of the database right
is 15 years from the date of completion of the making of the
database (Article 10 § 1), or if later, the first making
available to the public (Article 10 § 2). In practice, most
databases will probably be protected for a longer period.
According to Article 10 § 3, 'any substantial change, evaluated
qualitatively or quantitatively, to the contents of the
database, including any substantial change resulting from the
accumulation of successive additions, deletions or alterations,
which would result in the database being considered to be a
substantial new investment, evaluated qualitatively or
quantitatively, shall qualify the database resulting from that
investment for its own terms of protection'. Thus, a regularly
updated database is awarded semi-permanent protection. According
to Recital 55, even a mere 'substantial verification of the
contents of the database' would be enough to trigger a new term
of protection.
Beneficiaries of protection
According to Article 11 of the
Directive only nationals of a Member State or Community citizens
will qualify for protection under the database right. Also,
companies and firms formed in accordance with the law of a
Member State and having their registered office, central
administration or principal place of business within the
Community, will qualify (Article 11 § 2). The Council of the
European Union may extend protection to nationals or residents
of third countries on the basis of special agreements (Article
11 § 3). Surely, material reciprocity will be required for any
such agreement to come into existence.
3. Case law from Europe
Since the adoption and
subsequent implementation of the Database Directive at least 25
court decisions dealing with the new database right have been
reported, mostly from courts in Germany, the Netherlands and
France. [9] Not
surprisingly, in view of its sui generis character of the new
right and the European lawmaker's failure to provide clear-cut
definitions, courts have been struggling with the application of
various key concepts, such as the notion of 'database', the
'substantiality' of the investment required, the status of
database 'maker', et cetera. As the following summary of case
law from Europe will demonstrate, many of these concepts will
require further interpretation and refinement by the
higher-level courts. Eventually, if and when called upon by the
national courts, the final word on these and other notions
derived from the Database Directive will have to come from the
European Court of Justice. In the mean time, the new sui generis
right remains, at best, a right in statu nascendi.
Belgium
On 16 July 1998 the Belgian
legislature enacted a law transposing the Directive into Belgian
law. [10] The
copyright provisions are amendments to the Belgian Copyright Act
of 30 June 1994. The Act creates a separate law dealing with the
sui generis right and its exemptions. So far, only a single
court decision on the database right has been reported.
UNMS v. Belpharma
Communication – Court of Brussels 16 March 1999
[11]
This first Belgian case dealing
with the database right concerned the unauthorised extraction
and re-utilisation of a pamphlet with information on 'self-help'
groups intended for the French speaking community. Defendants
had published their own (national) list of self-help groups,
thereby copying plaintiff's pamphlet including even the
mistakes. After confirming that the list constituted a database,
the judge ruled that plaintiff was the maker of the
(non-electronic) database. Defendant was ordered to cease
infringing activities.
France
In France the sui generis right
is laid down in a Title IV of Book III of the French Code de la
Propriété Intellectuelle (CPI), as amended on 1 July 1998.
[13] Several cases
dealing with database right have been reported.
Dictionnaire Permanent des
Conventions Collectives – Tribunal de grande instance de
Lyon 28 December 1998 [13]
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.
Électre v. T.I.
Communication and Maxotex – Tribunal de commerce de Paris 7
May 1999 [14]
The case concerned the
unlicensed use on a web site 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 web site does not amount to
extraction or reutilization. By promptly closing the infringing
site upon receiving notice, Maxotax had avoided liability.
France Télécom v. MA
Editions – Tribunal de commerce de Paris 18 June 1999
[15]
France Télécom offered an
electronic directory accessible through France's still popular
Minitel service. Defendants had copied subscriber data without
authorisation, and made the data available online via Minitel
and the Internet. The Paris Court first declared 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 licence 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.
Groupe Moniteur and others
v. Observatoire des Marchés Publics – Cour d'appel de Paris
18 June 1999 [16]
This case concerned the
unauthorised copying and distribution of advertised calls for
tender in the field of public procurement which were published
in a specialised journal. Defendant had extracted calls for
tender from the monitor and other magazines, and compiled a
document delivery order form which it distributed to its
clients. Plaintiff claimed infringement of its copyrights and
database rights, as well as unfair competition. Copyright
protection was rejected for lack of originality. However,
defendant'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 plaintiffs, by
simply reproducing the calls it received from its advertisers,
had not substantially invested in its making.
Germany
The German legislature was the
first to implement the Database Directive. The Information and
Communication Services Act
[17] (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. Already,
more than a dozen database right cases have been decided by the
national courts, the most interesting of which will be discussed
below.
Berlin Online –
Landgericht Berlin 8 October 1998
[18]
The on-line database Berlin
Online, which contained classified ads from the Berliner Zeitung
newspaper, was systematically searched by a 'meta search
engine', 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 web site owner was deemed
to have suffered damages because the search engine
systematically bypassed the advertisements on the Berlin Online
site.
Süddeutsche Zeitung –
Landgericht Köln 2 December 1998
[19]
The facts of this case are
similar to the Berlin Online case summarised above. 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 reutilization 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 suffered damages because the advertisements on the
originating web site were systematically bypassed.
Tele-Info-CD –
Bundesgerichtshof (Federal Supreme Court) 6 May 1999
[20]
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. Defendants 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
privatisation 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
defendants amounted to unfair competition.
baumarkt.de –
Oberlandesgericht (Court of Appeal) Düsseldorf 29 June 1999
[21]
Plaintiff operated a website
containing advertisements and information on building
construction and 'do-it-yourself' products. Defendant operated a
search engine which linked to plaintiff's web site, and used
frames to display its contents. The Court of Appeal accepted
that a web site, being a collection of web pages, can qualify as
a database subject to database right. However, plaintiff had
failed to show substantial investment in the construction,
maintenance or display of the data. Moreover, since the
advertisements were published on the web site on commission, the
plaintiff was held not to be the entity bearing the commercial
risk, therefore could not be considered the database maker.
Kidnet/Babynet –
Landgericht Köln 25 August 1999
[22]
The case concerned the
(electronic) copying of defendant's web site which contained 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 up-dating 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 was an
unauthorised extraction and re-utilisation.
MIDI-Files – Landgericht
München I 30 March 2000
[23]
The case concerned the
liability of an internet service provider for making infringing
MIDI (music) files available online. The Munich Court held that
the MIDI files did not constitute a database within the meaning
of the German Copyright Act; a random collection of independent
data cannot be considered as such.
C. Net – Kammergericht
(Court of Appeal) Berlin 9 June 2000
[24]
Plaintiff operated a database
providing pricing and venue information on major entertainment
events to event organisers and ticket sales vendors. According
to the Court, the database constituted a database within the
meaning of § 87a of the German Copyright Act. The data were held
to be systematically ordered, because they appeared to the users
in an organised fashion, even if the data were not physically
ordered (i.e. on the digital media). Although the software
development and technical operation of the database were carried
out under commission by a data processing company, plaintiff
qualified as 'maker' of the database because of the substantial
fees paid to the commissioned party. However, the extraction
from the database of data relating to a single event did not
amount to infringement of the database right; no proof of
repeated and systematic extraction of insubstantial parts was
found. Since no database right infringement had occurred, no
supplementary protection on the basis of unfair competition
rules (misappropriation) was granted.
Medizinisches Lexicon –
Landgericht Hamburg 12 July 2000
This case concerned an on-line
database offering a medical lexicon which was also available 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)
authorised by plaintiff.
The Netherlands
In The Netherlands the Database
Directive was transposed on 8 July 1999.
[25] 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. The new
Act, already controversial prior to enactment, has generated
more than a host of interesting decisions.
Vermande v. Bojkovski –
President District Court The Hague 20 March 1998
[26]
The Vermande/Bojkovski case,
which was decided prior to implementation, concerned the
unauthorised 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 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
and others – Court of Appeal Arnhem, 15 April 1997
[27]
Another case decided prior to
implementation concerned wholesale copying of telephone
subscriber listings owned by KPN Telecom (the former Dutch PTT).
The Court of Appeal of Arnhem did not accept the defendant'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 'substantial'
investment. The Court, however, did find that KPN would abuse
its dominant position by refusing to license its data under fair
and reasonable terms. [28]
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.
[29]
KPN v. Denda International
and others – District Court Almelo 6 December 2000
[30]
In a follow-up decision on the
merits, the District Court of Almelo had to consider, inter
alia, whether acts committed prior to enactment of the Database
Act, but after expiry of the implementation deadline,
constituted 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
alpha-numerical form, that do not meet the test of originality.
[31] 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 is was
directly derived from its '8008' subscriber data file.
De Telegraaf v. NOS and HMG
– Dutch Competition Authority, 10 September 1998
[32]
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 analysis of the scope of the new
database right. The Competition Authority questioned whether the
requirement of 'substantial investment' has been fulfilled, the
program listings being a mere spin-off of the broadcasters' main
activities.
NOS v. De Telegraaf –
Court of Appeals of The Hague 30 January 2001
[33]
The dispute between De
Telegraaf and the broadcasters has continued before the civil
courts. Pending the final outcome of the competition case
discussed above, De Telegraaf had copied program listings for
publication in its weekly television guide. Applying the
'spin-off'-doctrine, the Court of Appeals of The Hague – ruling
in summary proceedings – 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.
KPN v. XSO – President
District Court of the Hague 14 January 2000
[34]
The District Court of the Hague
held that the operator of a dedicated search engine infringed
KPN's database rights by providing data extracted from KPN's
online 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.
NVM v. De Telegraaf –
President District Court of the Hague, 12 September 2000
[35]
Likewise, the District Court of
the Hague found database right infringement in a case pitting
the Dutch organisation of real estate brokers NVM against
newspaper publisher De Telegraaf. The latter operated a
web-based search agent ('El Cheapo') allowing 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
unauthorised extraction and reutilization 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 data
might be of great value to end users.
NVM v. De Telegraaf –
Court of Appeal The Hague 21 December 2000
[36]
The Court's decision 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
proven. 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.
Algemeen Dagblad a.o. v.
Eureka – President District Court of Rotterdam, 22 August
2000 [37]
This case concerned a web site
('Kranten.com') providing automatic hyperlinks to newspaper
articles posted online. Newspaper publisher PCM argued inter
alia that the unauthorised 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 substantial investment. Moreover, PCM had failed to
show that by Kranten.com's systematically linking to underlying
web pages ('deep' linking) it had lost advertising revenue.
Spain
In Spain the Database Directive
was implemented by the Act of 7 March 1998, amending the
Intellectual Property Act of 1996.
[38]
Editorial Aranzadi –
Court of First Instance Elda 2 July 1999
[39]
The case concerned the
unauthorised reproduction and posting on the Internet of a
database containing case law and legislation. The publisher had
put time and effort into the compilation, systematising 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.
United Kingdom
In the United Kingdom the
Directive has been implemented by way of the Copyright and
Rights in Databases Regulations 1997
[40] , which were
adopted by the Secretary of State for Trade and Industry on 18
December 1997. To date two decisions concerning database right
have been reported.
Mars v. Teknowledge –
High Court, Chancery Division 11 June 1999
[41]
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 recognised
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.
British Horseracing Board
(BHB) v. William Hill Organization Ltd. – High Court of
Justice 9 February 2001
[42]
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.
4. Conclusion
As the preceding overview of
case law has demonstrated, five years after the adoption of the
Database Directive the contours of the new database right remain
obscure. Key notions, such as the requirement of 'substantial'
investment or the notion of 'repeated and systematic'
extraction, remain open to conflicting interpretation and
controversy. Do databases that directly emanate from ongoing
data generating activities, such as operating a telephone
service or programming a television channel, qualify as
protected databases? Or does the 'spin-off' doctrine, popular
particularly among some courts in The Netherlands, prevail? Is
the extraction of a mere few data 'insubstantial' even if the
data are extremely valuable to the user? Are operators of search
engines that automatically browse through web-based databases
liable for 'repeated and systematic' extraction and
reutilization or not? Does the database right leave room for
supplementary protection under existing rules on unfair
competition (e.g. misappropriation), under easier terms than the
sui generis right, or is such protection pre-empted by the new
database right? To these and other important questions national
courts in Europe have produced conflicting, and sometimes
disturbing answers.
In sum, it is far too early to
draw conclusions, except, perhaps, that non-European countries
contemplating the introduction of a database right or similar
regime would be well advised to wait and see – wait until
the European Court of Justice has had the opportunity to clarify
the key notions of the Directive; and see if what ensues
is beneficial to the information industry, and in the public
interest. In the meantime, it will be interesting to study the
evaluation report by the European Commission, which is due by
the end of 2001. [43]
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