Following a reference from the German courts, the European Court of Justice (ECJ) has, in Directmedia Publishing GmbH v Albert-Ludwigs-Universität Freiburg, provided guidance on, and given a broad scope to, the concept of extraction in the context of infringement of the database right.
The owner of a database right has the exclusive right to prevent the extraction of the whole or of a substantial part of that database. In this ruling, the ECJ has held that this includes the unauthorised transfer of data from a protected database, even where there has been no technical process of copying. Even a manual recopying of the contents of such a database to another medium corresponds to the concept of extraction in the same way as downloading or photocopying. Moreover, it is immaterial that the data transferred is re-arranged and supplemented by further data.
The reference was made in proceedings between Directmedia Publishing and the Albert-Ludwigs-Universität Freiburg following the marketing by Directmedia of a collection of verse.
A professor at the University, Herr Knoop, had drawn up a list of verse titles that was published on the internet under the heading The 1,100 most important poems in German literature between 1730 and 1900. Directmedia sought to compile a collection of verse and had used Herr Knoop’s list of German verse titles as a guide. Directmedia then marketed their collection as a CD-ROM entitled 1000 poems everyone should have. Directmedia omitted certain poems that appeared on Herr Knoop’s list, added others and, in respect of each poem, critically examined the selection made by Herr Knoop. Directmedia took the actual texts of each poem from its own digital resources. Of the poems on Directmedia’s CD-ROM, 856 featured in Herr Knoop’s list.
The dispute between the parties was appealed to the Bundesgerichtshof, which decided to refer to the ECJ the question of whether using the contents of a database in such circumstances constituted an “extraction” within the meaning of Article 7(2)(a) of the Directive.
The ECJ held that such use, i.e., “transfer of material from a protected database to another database following an on-screen consultation of the first database and an individual assessment of the material contained in that first database” could constitute an extraction, provided that it “amounts to a transfer of a substantial part, evaluated quantitatively or qualitatively, of the contents of the protected database, or to transfers of insubstantial parts which, by their repeated or systematic nature, would have resulted in the reconstruction of a substantial part of those contents” and that this would be for national courts to decide in each case. The ECJ was nonetheless at pains to point out that the sui generis right concerned only acts of extraction and/or re-utilisation within the meaning of Article 7(2), it did not cover the simple consultation of a database.
The Database Directive has suffered bad press, particularly since the ECJ decision in British Horseracing Board  ECR I-10415 from which it became clear that the sui generis right did not extend as far as the legislature intended. Database makers will nonetheless value this latest decision and the broad interpretation of one of the infringing acts under the Directive. It is immaterial that the extracted data is laid out differently; it is not necessary that each act of transfer concerns a substantial part of the protected database; the fact that the material has be re-appraised is not determinative; and, ultimately, whether or not it’s for use in another database is irrelevant.