Database right case-law collection
On 11 March 1996, alomst six years after the first proposal (COM (92) 24 final) was presented to the Council, the European Database Directive was finally adopted (Directive 96/9/EC). This page contains a collection of links to relevant documents, legislative history, EU case law and publications regarding the directive.
This page was initiated by Prof. Bernt Hugenholtz and was kept up to date by several assistants: Shoba Sukhram, Ot van Daalen, Nynke Hendriks, Eric Idema, Moïra Truijens and Marloes Bakker.
This page was last updated in 2006.
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
Overview Implementation of Directive 96/9/EC (Source: European Commission).
|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.
|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.|
|S.P.R.L. Noir d’Ivoire v. S.P.R.L. Home Boutique, Court of Appeal of Brussels, 7 december 2001
Jurisprudence de Liège, Mons et Bruxelles (J.L.M.B.) 2002, p. 873
Both parties run shops in home decoration materials. The Court held that a palette of colors, that neither has a system to acquire an individual color without having to regard the whole ensemble of colors, nor has a system of cards, nor an index that gives direct access to an individual color, does not respond to the legal definition of a database.
|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).
|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.
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.
|The Directive has been transposed by Finland by Act Nr. 250 of 3 April 1998, which amends the Copyright Act of 8 July 1961 as previously amended (click here for an overview). A separate Act lays down law enforcement provisions. The first reported Finnish decision concerning the database right dates from February 2002 and has been referred to the European Court of Justice for a preliminary ruling.|
|Fixtures Marketing Ltd v. Oy Veikkaus AB
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?
See Case Law from the European Court of Justice
|Fixtures Marketing LTD v. Oy Veikkaus Ab (English translation)
District Court, Vantaa, 1 February 2002
The defendant, betting agency Veikkaus, used information from the plaintiff’s fixture list of the English Premier League, for its sport betting service. Fixtures claimed database right to its fixture list, arguing that the list is a protected database in the sense of the Database Directive. Veikkaus however argued that the investments made in the production of the collection of data were not specifically directed at the obtaining, verification and presentation of the database. The database, arguably, is no more than a ‘spin-off’ of activities falling outside the scope of database protection, and therefore not eligible for database protection. The District Court of Vantaa decided to put three questions to the European Court of Justice for a preliminary ruling (case C-46/02).
See: ECJ – C-46/02, 9 November 2004