On 22 November 2016, the Court of Appeal in Amsterdam rendered its judgment in the case of Pearson Assessment and Information against Bär Software.
Pearson publishes psychological tests that consist of a questionnaire, testing materials, a score form and a manual for marking specific tests. It publishes its tests and the results thereof for the benefit of psychodiagnostic research in the context of diagnosing (mental) disorders and syndromes, intelligence assessments, and medical advice. Bär Software develops and runs the Roermond's Score Programme (RSP), by means whereof tests made available by Pearson and other publishers can be 'scored' and a (draft) report is generated (the RSP report) thereafter. To this end, Bär uses data that have been made available by Pearson, and it also uses the scoring rules from Pearson's manuals.
The legal dispute between Pearson and Bär relates to the questions whether Pearson's psychological tests are protected by copyrights and database rights, and whether Bär infringed those rights. In addition, Pearson alleges that Bär Software acted unlawfully towards Pearson by using (parts of) psychological tests developed by Pearson in the context of Bär's RSP software.
The District Court in Amsterdam dismissed Pearson’s claims by concluding that Pearson's standard test tables containing standard data are not protected by copyright or database rights and that Bär did not act unlawfully towards Pearson. Pearson lodged an appeal against the District Court's judgment.
The Amsterdam Court of Appeal considered that an assessment should be made to determine if the separate elements of Pearson's test are protected by copyright. It held that Pearson's statistical tables containing scoring data are merely a collection of objective research data, and more specifically, they represent factual information about the test results of standard groups. It also held that these tables containing statistical data are not creative expressions and do not bear the personal mark of the author. Consequently, Pearson's tables are not protected by copyright. The same applies to the contents of the tables (data as such) and the scoring rules contained in the manuals.
Subsequently, the Court of Appeal had to answer the question whether Bär infringed Pearson's possible database rights (which do not qualify as copyrights but as sui generis rights). The debate on appeal was centralized on the “substantial investment” criterion. There must be a “substantial investment” (in terms of either quantity or quality) in obtaining, verifying, or presenting the contents of a database in order to seek protection and subsequently prevent the extraction and/or re-utilization of the database contents by third parties. When assessing whether a “substantial investment” has been made, the costs involved in the creation of the relevant database are disregarded.
The Court of Appeal concluded that Pearson did not invest substantially in making existing, independent, informative data accessible. Pearson's investments relate to mostly the development and verification of the testing materials and their validity, and not to the method of making such materials accessible. Pearson's reliance on database right protection therefore failed.
In respect of Pearson's claim alleging that Bär acted unlawfully towards Pearson by using (parts of) Pearson's tests, the Court of Appeal considered that – in general – to facilitate free competition and innovation, one is allowed to use third parties' efforts and to develop and exploit add-ons in respect thereof. In the case here, there were no specific circumstances that led the Court to conclude that Bär acted unlawfully towards Pearson. Pearson's claims on grounds of unlawful act were therefore also denied.
Pearson, as the non-prevailing party, was ordered to pay the actual costs incurred as a result of the appeal proceedings (i.e., €23,816 for fees and €4,961 for disbursements), since in IP proceedings, such as the case at hand, parties may seek from the non-prevailing party the actual costs incurred instead of (the fairly limited amount of) court-approved, scale-based costs.